Late Payment of Commercial Debt

Lord Harrison: asked Her Majesty's Government:
	How successful their late payment legislation has been, and whether more can be done to help small businesses with late payment of commercial debt.

Lord Davies of Oldham: My Lords, late payment can have a crippling effect on the cash flow of businesses. The 1998 legislation provides a framework for tackling it. It allows businesses to charge interest on overdue invoices at 8 per cent above the Bank of England base rate, and to claim compensation of up to #100; SME representative bodies can also challenge unfair payment terms. Late payment was top of one list of business concerns in 1997; it is now ninth.

Lord Harrison: My Lords, I congratulate the Government on the successful introduction of the late payment on commercial debt legislation. Nevertheless, I raise a disturbing report that I have had from the Forum for Private Business, which suggests that contracts commissioned by Defra two years ago during the outbreak of foot and mouth disease have not been paid, and nor has the statutory interest. Does my noble friend agree that it is imperative that all government departments observe the legislation, the cornerstone of which is that right to statutory interest?

Lord Davies of Oldham: My Lords, the target for all government departments is 100 per cent payment on time. Defra is just below the present figure of 95 per cent, and it must bear responsibility for that. No doubt my noble friend will pursue the issue with the department. There have been some difficulties in particular areas, as he indicated. A senior official in Defra's procurement division will attend a meeting of the Better Payment Practice Group on 21st October, when the issue will be discussed.

Lord Razzall: My Lords, does the Minister accept that, in his Answer to the noble Lord's timely Question, he has somewhat led with his chin by suggesting that the issue has moved from the number one concern to number nine? That leaves eight matters still of significant concern to the SMEs. Does he accept that the most significant of them is the increased burden of regulation on SMEs and that, notwithstanding the good work of the task force that the Government set up after they came into office, significantly more work needs to be done in that area?

Lord Davies of Oldham: My Lords, I agree with the noble Lord's latter point that there is more work to be done. I do not think that I led with my chin in indicating that the issue of debt had dropped to ninth in concern. In fact, I would be excessively naive if I thought that medium and small enterprises had no concerns.

Lord Borrie: My Lords, does my noble friend agree that the 1998 Act was based on a false assumption that small firms that are owed money will be willing to sue for interest larger firms with which they have an ongoing relationship? That was expecting an impossibility, as the years since have rather proved. Should the Government not think of other methods to ensure that late payment of debts comes to an end?

Lord Davies of Oldham: My Lords, my noble friend has a point. Small firms will not want to alienate large firms with which they have contracts. However, he should recognise that there has been significant improvement since the passing of the 1998 legislation. That has been recognised by the leaders of organisations representative of small businesses. The legislation permitted those organisations to challenge non-payment in court, and not simply to leave it to the small enterprises themselves.

Lord Skelmersdale: My Lords, in the Minister's answer to the supplementary question of the noble Lord, Lord Harrison, he said that no doubt the noble Lord would pursue the matter with Defra. As the matter has now been put at the Minister's feet, will he accept not only that he would have more clout in pursuing the matter with Defra, but that he should get on and do it?

Lord Davies of Oldham: My Lords, I thought that I had indicated that that was exactly what we were doing. I suggested that Defra had responsibility for its own performance with regard to the objective and the target. However, the group that monitors performance of government departments has put the issue on its agenda, and a senior Defra official will attend to respond to challenges made at that meeting.

Baroness Greengross: My Lords, I am very concerned about the crippling effect of late payment on many voluntary organisations. They face real difficulties because of the late payment of invoices and contract moneys due, specifically from local authorities. One charity of which I know is owed #1.68 million out of an annual turnover of #12 million. Half that amount relates to the past financial year. That is obviously unacceptable, and I seek reassurance from the Minister that the late payment legislation will be tightened up to address the problem, which is growing.

Lord Davies of Oldham: My Lords, the noble Baroness clearly identifies an important case. In terms of the general position with regard to voluntary organisations and charities, particularly in relation to local authorities, the target set for government bodies is also a target for local authorities. Of course, each local authority is responsible for its performance, but the Government have made it absolutely clear that we expect public authorities to get as close to 100 per cent timing and performance as possible.

Baroness Miller of Hendon: My Lords, does the Minister accept that in this matter the Government should be leading the way in paying their bills and not have any bills outstanding for any period of time? We were amazed to hear that 95 per cent of Defra bills are paid on time. However, that is not what the newspapers say. What does the 5 per cent represent? How many bills are not paid? Do the Government offer to pay the statutory interest for late payment without being asked by the individual who is owed the money?

Lord Davies of Oldham: My Lords, the House will recognise that the payment of some bills is problematic because the submission can be the subject of dispute. Where public money is involved, it is absolutely right that the department concerned makes sure that it is being charged exactly and precisely for services rendered. However, the noble Baroness is right. The Government set the target at 100 per cent because that is what we expect government departments to achieve. In some departments, we are very close to or hitting that target. Defra, if I may return to it, is just below the government department average, which is 95 per cent. That is an improvement on the 91 per cent of five years ago, before the legislation. The legislation is having its effect and we are making progress.

Comprehensive Disability Bill

Lord Ashley of Stoke: asked Her Majesty's Government:
	What consideration they have given to the case for a comprehensive Bill on disablement.

Baroness Hollis of Heigham: My Lords, the Secretary of State for Work and Pensions will publish a draft Bill later this year which will take forward our manifesto commitment to extend basic rights and opportunities for disabled people. I am sure that my noble friend will in due course share his views with the House on whether he regards such a Bill as comprehensive.

Lord Ashley of Stoke: My Lords, I thank my noble friend for that response, which is fine as far as it goes, but has she heard reports, as I have, that the Government have no intention of including the new disability Bill in the Queen's Speech, on the flimsy ground that it will require extensive consultation? She knows that we have been consulting on those issues for more than four years. We do not need any further consultation. Is my noble friend aware that if the Bill is not brought forward in the Queen's Speech, it will be very damaging to many disabled people, who certainly do not yet have full rights now and suffer discrimination? It will also be damaging to the Government because of the backlash from millions of disappointed disabled people. The idea of a draft Bill at this stage is preposterous.

Baroness Hollis of Heigham: My Lords, my noble friend's views on the preposterousness of a draft Bill are not widely shared. I have had it put to me that a draft Bill which exposes the issues and brings a range of viewpoints into play would be highly desirable.
	I shall address the substance of my noble friend's point, which is about the status of the proposed legislation. My right honourable friend the Secretary of State has already made it clear that legislation will be passed by the end of this Parliament.

Lord Campbell of Croy: My Lords, does the Minister agree that there is a need for further reduction and elimination of barriers which obstruct disabled people and that such a Bill should cover mental disablement as well as physical? I declare an interest, being disabled myself from World War II.

Baroness Hollis of Heigham: My Lords, we certainly expect such a Bill to increase or widen the definition of disability as well as covering public sector duties and access to premises, private clubs and so on. The issue of mental health, as the noble Lord will understand, is difficult, but the definition of disability at the moment is that a condition is long-standing and has a substantial, adverse impact on the ability to perform day-to-day duties. If somebody with a mental health problem or learning difficulty fits that definition, he already comes within the existing DDA.

Lord Carter: My Lords, a Joint Select Committee which I chair is examining the draft of the mental incapacity Bill. I understand also that the Department of Health is considering a mental health Bill. Those two Bills, alongside the disability Bill, which my noble friend has mentioned, would form a troika. If they were all on the statute book by time of the next election, that would be a considerable achievement.

Baroness Hollis of Heigham: My Lords, I would welcome that too. My noble friend presses me on the form of scrutiny of such a draft Bill. The Government have not yet made their decision, but one possibility is clearly a Select Committee. The other is a Joint Committee of both Houses. I am sure that, whatever happens, your Lordships would wish to be involved in the scrutiny process.

Baroness Gardner of Parkes: My Lords, does the Minister agree that legislation is one thing but example is another? Does she recall that I have previously raised in this House the difficulties that Portcullis House presents to disabled people? She has had correspondence with its managers and they have assured her that they will try to make it more amenable for disabled people and, in particular, for disabled people to be able to work there. Their only reply was that you could be "accompanied" around it. If you were working there, you certainly could not have another paid person to accompany you to open the doors and deal with the obstacles for disabled people. Is the Minister able to update us on whether there has been any progress in improving the comparatively newly built Portcullis House?

Baroness Hollis of Heigham: My Lords, my understanding is, but I shall check again, that as result of the perfectly proper pressure from the noble Baroness, the door handles, for example, are being changed, so that people who are in a wheelchair or have a disability can more easily open the doors. Issues such as that have been taken on board. I know that the architects have carried out the equivalent of a disability audit of that building in response to the pressure from your Lordships' House.

Lord Addington: My Lords, do the Government agree that it is about time that we allowed any new commission or following-on body to get away from an individual-case, reactive approach to ensuring that the law is enforced and to have the power to take on a more far-seeing and preventive approach to any disability issue?

Baroness Hollis of Heigham: My Lords, I am not sure whether the noble Lord is pressing for the DRC to take up wide-ranging issues such as that. It is a difficult issue, because it could very well cut across the role of, for example, the Health and Safety Executive. I shall give an example. Approximately one-third of people on incapacity benefit have either a mental health or a learning difficulty—largely mental health depression and stress. One could seek to deal with issues of discrimination on the basis of the DRC. What seems to me more helpful—and this issue, too, has been raised in your Lordships' House—is to have the Health and Safety Executive working with employers, as it is doing, putting out new guidance and strengthening the enforcement proceedings, first, in order to avoid the problem arising and, secondly, to ensure appropriate rehabilitation strategies.

Lord Higgins: My Lords, will the Government comment on the first legislative review of the Disability Rights Commission and will they do so in advance of the publication of the draft Bill?

Baroness Hollis of Heigham: My Lords, if the noble Lord is referring to the comments of the DRC on inclusion proposals, even before changes that will take place in October 2004, we have already implemented approximately 70 per cent of the recommendations of the Disability Rights Taskforce. Given the proposals that are coming through in October 2004 in terms of the employment directive which, as the noble Lord will know, covers 1 million employers, 7 million people and 600,000 disabled people, together with the proposed draft legislation, I am confident that we will be addressing the DRC's concerns.

Baroness Masham of Ilton: My Lords, is the Minister aware that a growing number of elderly disabled people require help in the home with such basic things as having a bath? Is she also aware of the incredible cuts in the use of the taxi card for people who cannot use public transport? That certainly is the case with Westminster City Council.

Baroness Hollis of Heigham: My Lords, I do not want to be unhelpful, but the degree to which local authorities respond to the day-to-day needs of disabled people is wide of the Question, which is about a comprehensive disability Bill. However, if the noble Baroness would like to write to me about any particular local authority, I shall do my best to make inquiries and respond to her.

CAP: Export Subsidies

Lord Hylton: asked Her Majesty's Government:
	Whether they will propose further reduction in European Union agricultural export subsidies, in particular the phasing out of subsidies on sugar and milk exports over the next four years.

Lord Whitty: My Lords, the WTO Doha Declaration in 2001 committed all members to negotiations aimed at reductions of all forms of export subsidies for agricultural products, with a view to phasing them out. The Government remain fully committed to this objective, although the timetable remains a matter for negotiation and I am unable to commit to precise end-dates at present. The UK continues in the forefront of those seeking liberalisation of agricultural markets.

Lord Hylton: My Lords, I am grateful for the Answer. Does the Minister agree that two-thirds of the subsidies are accounted for by sugar and milk? Does he also agree that they distort trade far more than tariffs or import levies; that they often exceed the aid given to individual developing countries; and that they destroy the livelihoods of poor people? Therefore, will the Government give a lead to the rest of Europe on this matter?

Lord Whitty: My Lords, the UK has been at the forefront of the EU's position to move to greater liberalisation in this and other areas. Indeed, we were instrumental in ensuring that the EU offered to cut all agricultural export subsidies by 45 per cent with a view to phasing them out entirely. That did not reach the point of negotiation in Cancun, but it was a significant shift in the EU's position.
	The situation on sugar is particularly complicated. It is true that sugar and dairy products account for two-thirds of Europe's export subsidies, although relatively little of that—none in sugar—accrues to United Kingdom producers.

The Earl of Onslow: My Lords, how can the Minister say that Britain is in the forefront of this when Mr Chirac and Mr Schroider went to Berlin, stitched up the whole arrangement and ensured that no progress was made on reform of the CAP for 10 years? It is all very fine and large for Ministers to say that the British Government are in the forefront—they are not. We get stitched up on this particular issue by the French and Germans every time.

Lord Whitty: My Lords, that is a completely erroneous interpretation of the events of recent months. Let us look at the facts. We had the most dramatic change in the CAP for decades, which shifted the bulk of subsidies away from production and towards environmental and social benefits. That was a major contribution which meant that the EU could enter negotiations in Cancun having made that move.
	That move did not include export subsidies, nor was it ever going to include export subsidies. However, as I have said, the EU was prepared to make a move in the WTO context on export subsidies. The fact that we did not reach agreement was not because the EU was unable to move.

Lord Tomlinson: My Lords, does my noble friend agree that approximately 50 per cent of the present EU budget goes on the common agricultural policy? In an increasingly regulated world trade order, which we all want and can see as desirable, is it not the fact that the CAP as a whole and American agricultural subsidies stand in mockery to the goals of a regulated world trade system?

Lord Whitty: My Lords, that has been the position of successive British governments for a long time. The point I was making in response to the noble Earl was that we have succeeded in achieving a major reform of the CAP. It did not go as far as we would like, but it was substantial and in multilateral talks it put the European Union in a position to lead towards greater liberalisation of world markets. It is true that the EU has the largest number of direct export subsidies and it is important that we commit ourselves to phasing those out as rapidly as possible. My noble friend referred to the United States. It is also true that there are other ways of subsidising exports. Direct export subsidies, food aid and export credits are used by the United States to equal effect of those in the European Union.
	I fully accept that we need to make progress on this front. However, the EU as a whole, at the behest largely of the United Kingdom, has moved substantially in that direction.

Baroness Miller of Chilthorne Domer: My Lords, does the Minister agree that export subsidies in the milk sector are doubly damaging? They are damaging to the developing countries on which the products are dumped and damaging to our small family dairy farmers who, instead of being encouraged by governments to produce value-added products—such as yoghurt and cheese—still produce low-value products such as milk powder. Will the Minister do his best to ensure that those farmers are enabled to produce value-added products?

Lord Whitty: My Lords, reform of the CAP went less far in relation to dairy and in relation to livestock and arable farming—although further than it has gone on sugar. It is important that we get closer to a market situation in dairy and that the British dairy industry in particular makes its money from value-added products. However, as regards export subsidies, we do not export a significant amount of liquid milk and we tend to export milk products and skimmed milk. The subsidies we receive in that area come from that side of milk production and not from liquid milk. In negotiations on the EU agricultural policy, it was disappointing that the dairy reform—removing quotas, export subsidies and price support—did not go further.

Baroness Byford: My Lords, does the Minister agree that the detail and the phasing-out is the biggest challenge faced by the Government and the EU? I want to raise the problem of sugar. We are concerned that some of the ACP countries which now have favourable conditions may be the losers in some way. How are Her Majesty's Government going to approach that problem?

Lord Whitty: My Lords, that is why I said that the problem surrounding sugar is more complex than simply removing the export subsidy and the guaranteed high European price. Removing the guaranteed price and the export subsidy will have an effect on the world price which will not necessarily be to the benefit of sugar producers. One is then in danger of shifting the burden from the poorest to the poor, or among the poor. That is perhaps why sugar is the least reformed part of the CAP because the development effect is differential.
	It will take time to reform the sugar regime, but we must make a start on it. It is one of the most objectionable aspects of the EU's CAP and it hits many developing countries, both those which benefit from access to what is basically the British part of the EU market and those which do not.

Lord Carter: My Lords, in considering this subject, should we not remember that, at present, virtually every dairy farmer in the UK is producing milk at a loss and has been doing so for a number of years? I declare an interest as president of the Royal Association of British Dairy Farmers. I entirely agree with, and support, the thrust of the Government's policy. However, would my noble friend care to speculate on the effect on the UK dairy farmer if, in fact, export subsidies on milk products were phased out?

Lord Whitty: My Lords, as I said, as far as concerns the British dairy farmer, the export subsidies received are not for liquid milk, which we hardly export. Therefore, the phasing out is not relevant to the liquid milk price. Clearly the phasing out will not happen overnight. The reduction in export subsidies will take place in a phased way as part of a total reform of the dairy policy. In the short term, if people continued to produce to quota and if there were no subsidised export markets, then obviously the price would go down further. However, it would probably hit the intervention price and therefore make no significant difference to the income of dairy farmers. But this must be part of a planned phasing out of the totality of the dairy regime.

Lord Mackie of Benshie: My Lords, I wonder whether the Minister—

Noble Lords: Next Question!

Lord Mackie of Benshie: No, my Lords.

Baroness Amos: My Lords, I think it is time for us to move on to the next Question.

Traffic Regulation: National Trails

Lord Bradshaw: asked Her Majesty's Government:
	Following the Railways and Transport Safety Act 2003, what progress is being made in promoting a traffic regulation order banning mechanically propelled vehicles from using national trails such as the Ridgeway.

Lord Whitty: My Lords, the Government believe that a comprehensive and integrated management plan, jointly implemented by the local authorities, is the only way to solve the problems on the Ridgeway. My right honourable friend the Minister of State for Rural Affairs has met MPs, Peers and local authorities several times to try to gain support for that. Exercising the Secretary of State's power to make a traffic regulation order would be a last resort, should that local co-operation not succeed.

Lord Bradshaw: My Lords, I thank the noble Lord for that reply, but I must express extreme disappointment. When that Act was a Bill, this House voted for an amendment to it which I believe expressed our total frustration at the lack of progress by local authorities in passing traffic regulation orders, which the police, with so many other government priorities, are in no position to enforce. We asked the Government to consider bringing forward within a year a comprehensive traffic regulation order, which would be seen by some in the countryside as a measure of relief from some of the other rather oppressive measures which the Government have in mind.

Lord Whitty: My Lords, the traffic regulation order pre-existed the Bill to which the noble Lord refers, and it is always to be used as a last resort when other elements have failed. The problem in relation to the Ridgeway—the specific focus of this Question—is that different parts of it have a different status. In some areas, it is a BOAT—a byway open to all traffic; in others, it consists of pathways; and, in a small part, it is also a metalled surface or a RUPP—a road used as a public path. Therefore, different rules apply to different parts of it and that means that local solutions are required in some areas. However, my right honourable friend Alun Michael is attempting to bring together all the enforcement authorities and, if that fails, will consider, as a result of the Bill to which the noble Lord refers, the possibility of intervening with a traffic regulation order.

Baroness Byford: My Lords, first, when will the Government do that? It is a year since we debated this very important matter. My noble friend Lord Astor, who cannot be here, particularly wished me to raise this issue because the House of Lords clearly voted for action and nothing has happened. Secondly, is the traffic regulation order time-limited? In other words, can it run only for a certain length of time? If that is the case, are the Government giving any thought to extending the time period?

Lord Whitty: My Lords, the traffic regulation order would apply to a specific part of a right of way, or whatever, for a limited period, but it would be renewable. Therefore, I do not believe that we need to change the law in that respect. To touch on the wider issue to which the noble Baroness referred, further consultation is to take place on the total approach to motorised traffic in this area, and the use of traffic regulation orders by the Secretary of State from on high needs to be retained as an important power. However, it is also important that the local authorities, including the police authorities, regard this as an important area in which the law should be enforced.

Lord Berkeley: My Lords, given the assurance from Ministers in, I believe, June or July, that, if necessary, they would bring in these orders within a year—my noble friend has just said that they would be used as a last resort—how long a consultation period would be required before the orders were introduced? Can they be put in place concurrently with the wider consultation on the national ban that my noble friend has just mentioned or must one precede the other?

Lord Whitty: My Lords, the consultation to which I referred related to the overall issue and not to the use of the traffic order. Therefore, in that sense, they could be carried out or put in place concurrently.

The Earl of Onslow: My Lords, would not Defra's time be far better taken up with ensuring that this problem, which is universally agreed to be a proper problem, is dealt with rather than banning fox hunting? The latter, which is a waste of the department's time, is considered by an awful lot of people to be very useful and beneficial to the countryside. However, I am absolutely certain that the noble Lord cannot get his mind round that question.

Lord Whitty: My Lords, there are also an awful lot of people who think the opposite to the noble Earl. The subject of the Question poses a problem for particular parts of the country and it is an issue on which the House and Parliament have legislated. Therefore, it is important that we take seriously the powers which the recent Act gives us to deal with what, I agree, is a very disturbing problem to many people who try to use our highways and byways.

Lord Avebury: My Lords, I welcome the close interest taken by the Minister, Alun Michael, in this problem. However, does the Minister agree that the lengthy discussions which he has held with local authorities, MPs and other interest groups demonstrate how hard it is to obtain an agreement piecemeal in the manner that he suggests? Meanwhile, is he aware, as I am sure he must be from the photographs sent to Ministers by Friends of the Ridgeway, of the enormous damage being done by the irresponsible users of four-by-fours? Will the Minister come forward with any alternative proposals or will he accept the amendment which my noble friend moved when the Act was a Bill?

Lord Whitty: My Lords, although it is true that obtaining co-operation between the various authorities has at times been difficult, in this respect I believe that some progress has been made in dealing with the Ridgeway. There are issues of damage to the fabric of the Ridgeway, some of which are being addressed by that group. But, of course, it is not always the case that motorised vehicles are illegal. In some parts of the Ridgeway, the presence of motorised vehicles is illegal, but most of the Ridgeway is open to some degree to motorised traffic. Therefore, it is people's behaviour and the way that those vehicles are used which may be anti-social or illegal. Therefore, it is not a straightforward issue.

EU Investment Services Directive

Lord Hodgson of Astley Abbotts: asked Her Majesty's Government:
	What is now their policy on the draft Investment Services Directive, following the outcome of the meeting in Brussels on 7th October.

Lord McIntosh of Haringey: My Lords, the Government voted against the presidency text for a Council common position on the proposed Investment Services Directive at ECOFIN on 7th October. The Government will continue to work to improve the proposed directive, including working through the European Parliament and with the financial sector and other member states.

Lord Hodgson of Astley Abbotts: My Lords, I am very grateful to the Minister for his reply. I begin by congratulating him on his attempt to make a silk purse out of a sow's ear. However, on reflection, does he recognise that the meeting was a stitch-up, which the Government fell for? It was a stitch-up between the smaller European financial sectors to gang up at the expense of the City of London. Does the Minister further recognise that, as a result, there will be a considerable cost to the people of Britain, both in terms of the higher cost to British industry in raising funds and to private individuals in buying and selling shares? Finally, will the Minister comment on the remarks in the Financial Times, which described the results of the meeting as "scandalous", "retrograde" and,
	"a shot in the foot"?

Lord McIntosh of Haringey: My Lords, as I am required to do so, I shall answer the first two questions. I have not attempted to conceal the fact that this was a defeat for the Government. We would have wanted this matter not to have been pressed to a vote by the Italian presidency. We think it was a mistake for them to do so. We believe that there was room for compromise and for agreed solution, which would have been better for financial markets in this country. There is no disguising that fact.
	However, this is not entirely the end of the matter. Under the co-decision procedure, the European Parliament can push for amendments to the Council, a common position. There is some hope that it might do so in the light of the fact that the first reading in the European Parliament produced a text which was better than the presidency text adopted by a majority vote last week.

Lord Woolmer of Leeds: My Lords, while agreeing that it is important that the outstanding directives are not rushed through without proper and careful consultation, is the Minister aware of the reported views of the chairman of the Financial Services Authority that the timetable for implementation of the huge amount of legislation involved is unrealistic, will impose very substantial costs and raise major difficulties in the industry? Will he raise that at ECOFIN in November and seek to ensure that revised guidance is provided to the Committee of European Securities Regulators when they seek to implement the single market financial regulations?

Lord McIntosh of Haringey: My Lords, I pay tribute to the work of my noble friend as chairman of the sub-committee carrying out an inquiry into the EU Financial Services Action Plan. Yes, he is right: Callum McCarthy expressed the view that there are too many of these directives going through to be assimilated. We have considerable sympathy with that view and continue to express it to our colleagues in the European Union. But they are not all as threatening as the noble Lord, Lord Woolmer, thinks. For example, the prospective directive, on which the noble Lord, Lord Hodgson, expressed grave doubts in an important debate in this House two years ago, and which removes barriers to integration in European social securities markets, is now approaching conclusion on a basis which is very acceptable to this country and has been improved by the action of the British Government.

Lord Lawson of Blaby: My Lords, the Minister has clearly agreed that this is a very serious matter indeed. He called it a defeat for the Government. It was not the Government's fault but it was a big defeat. Did the Government consider invoking the so-called "Luxembourg compromise" on this matter? Indeed, what is the Government's position on the Luxembourg compromise?

Lord McIntosh of Haringey: My Lords, we have always supported the Luxembourg compromise. There are powers which the presidency has and which, unwisely in this case, the Italian presidency used to force a matter to a vote, in our view prematurely. But I do not think we would have been helped by the Luxembourg compromise.

Lord Tomlinson: My Lords, does my noble friend not agree that the Investment Services Directive is a salutary example to many Members of this House of why they should not have a knee-jerk reaction to the proposal from the Convention on the Future of Europe about extending co-decision powers to the European Parliament? This is one case where we shall depend on it, and perhaps people should be a little more cautious about attacking such extensions in future.

Lord McIntosh of Haringey: My Lords, I am reluctant to generalise from the Question which is specifically about the Investment Services Directive. The Investment Services Directive has many positive features, many of which have been introduced as a result of pressure from this Government. However, we remain unhappy about Article 25 on pre-trade transparency and the provision in the directive for the treatment of execution-only business. So, we do have concerns but I do not think it would be appropriate in answer to this Question to seek to address the wider questions raised by the noble Lord, Lord Tomlinson.

Lord Newby: My Lords, does the Minister accept that the Government were taken by surprise by the Italian proposals on this directive and were outmanoeuvred in the Council? Can we have an assurance from the Minister that in all future discussions and measures under the Financial Services Action Plan the Government will give these issues top priority at both ministerial and official level? Such a priority was seriously lacking in this case.

Lord McIntosh of Haringey: My Lords, I do not accept that there was a lack of priority given to this issue by the Government. Certainly, I assure the noble Lord, Lord Newby, that we shall give these matters top priority. However, I believe that the phrases "outmanoeuvred" and "taken by surprise" are not appropriate here. The point is that any presidency, and in this case the Italian presidency, has the power to force the matter to a vote. Normally, sensible presidencies do not do that; they seek a compromise which is acceptable towards all parties and pay attention to the fact that the United Kingdom has, rightly, the largest financial services market in the European Union, and that should be given priority.

Lord Jenkin of Roding: My Lords, has the Minister noticed the appeals that were made by some of the trade associations, reported in the Financial Times, that part of the problem could be averted if officials would avoid gold-plating regulations and interpreting them a great deal more strictly than in other member countries in the European Union?

Lord McIntosh of Haringey: My Lords, I have seen those reports. I do not think that that criticism applies in this case. The financial services industry in this country is not unanimous in its views on any defects in the Investment Services Directive. Yes, the larger investment banks are opposed to it, but some other banks and smaller financial houses are not so opposed. I do not think that the criticism raised by the noble Lord, Lord Jenkin, is appropriate in this case.

Household Waste Recycling Bill

Read a third time, and passed.

Criminal Justice Bill

Baroness Scotland of Asthal: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
	Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.
	House in Committee accordingly.
	[The CHAIRMAN OF COMMITTEES in the Chair.]
	Clause 215 [Meaning of "specified offence" etc.]:

Lord Dholakia: moved Amendment No. 195AA:
	Page 126, line 32, leave out "a specified offence" and insert "of a serious sexual or violent nature"

Lord Dholakia: Chapter 5 provides measures for dealing with dangerous offenders. The Halliday report criticised the existing disparate set of provisions for sexual and violent offenders and identified a need for a more coherent sentencing structure to deal with this type of offender.
	These measures are designed, it seems, to replace the existing structure of automatic life sentences, longer than normal prison sentences and extended sentences. Thus, Schedule 26 provides for the repeal of Sections 80, 85 and 109 of the Powers of Criminal Courts (Sentencing) Act 2000. In their place Clause 215 states that where an offence is a "serious offence" with a maximum of life imprisonment and the court regards the offender as a significant risk to the public, and the seriousness of the offence is such as to justify a life sentence, the court must impose a sentence of imprisonment for life. Clause 216 contains a similar provision for offenders under 18.
	Clauses 215 and 216 also provide that where a sexual or violent offence is a serious offence, with a maximum sentence of at least 10 years, and the court takes the view that the sentence it might otherwise pass would not be sufficient to protect the public from the significant risk that the offender presents,
	"the court must impose a sentence of imprisonment for public protection".
	That is a kind of indeterminate and reviewable sentence, release from which is governed by Schedule 15.
	We are concerned that under Clause 215 Schedule 12 could be extended to cover other offences. The assessment of "dangerousness" under Clause 220 could fetter the discretion of the courts in making an extremely important decision for the public safety. We are not persuaded that these hoops would make sentencing any better or easier to understand. It should be for the courts to review the decision taken under Clause 221. The wide power of the Parole Board to extend sentences, even if ECHR-complaint, is undesirable and not in the interests of justice and democracy.
	The intention behind the amendments is to try to open up discussion of what kind of offences will trigger those provisions and to advance our view that the list should be limited to serious or violent offences. A cursory glance at the list will show the Committee that a whole range of what are in our view non-serious offences is included.
	The amendment is grouped with Amendments Nos. 195AB, 197A and 197B. They raise an issue of significant public importance. People have strong views about the best way to deal with dangerous offenders. In the course of debate on the amendments, we shall be able to probe the Government's thinking on the subject. We should have an honest debate about sentencing; but equally it is important to identify what works and is good and effective for both defendants and victims.
	Perhaps the most important change would be made by the amendment requiring that the offence be serious. Our intention is to debate what sort of offences should trigger the dangerous offenders provision and to consider what thought has been given to the subject since the relatively recent amendments made by the Powers of Criminal Courts (Sentencing) Act 2000.
	The second question is whether it is appropriate to define "serious sexual and violent offences" by means of a list of offences. These are probing amendments, so it will be useful to hear the Minister's thoughts on those matters. I beg to move.

Lord Thomas of Gresford: This group of amendments raises the question of the best way to use public resources in the criminal justice system. A basic criticism of Chapter 5 of Part 12 is the high cost involved in putting it into effect.
	For example, it requires a massive increase in the material required for the sentencing court: the gathering of information about the circumstances of the offence; the pattern of behaviour of the defendant; and any further information about him that can be made available. There will then need to be submissions and argument in court about whether there is a significant risk of serious harm to members of the public occasioned by further offences set out in the list in the schedule. Those offences may be quite different from the offence for which the defendant stands before the court to be punished.
	The scheme also envisages a significant lengthening of terms of imprisonment. The Committee will know from our many debates on the subject that imprisonment is extremely costly. It means more imprisonment by reason of the number of life sentences that will be imposed and by the new sentence of imprisonment for public protection, under which it is envisaged that imprisonment of a defendant will continue indefinitely until the Parole Board orders release. There is then the cost of extending the Parole Board and its bureaucracy to cope with what will be a massive increase in its workload.
	The provisions then envisage that after the completion of sentences of imprisonment a defendant will serve a period on licence. The cost of supervising licences—presumably by the probation service—of both those released from life sentences or sentences imposed for public protection and those subject to extended sentences of up to five years for violent offences or eight years for sexual offences must also be considered.
	So where will the money come from to pay for more court days, more judge time and the increased workload of defence and prosecution lawyers, to build new prisons to accommodate those prisoners who will be held for longer, to extend the Parole Board and to expand the probation service? I suggest, from cutting back on rehabilitation schemes, on which the emphasis should always lie.
	The purpose of this group of amendments is to try to introduce some common sense to the scheme, so that not everyone who appears in court will have to go through the period of assessment of risk to the public. The list in Schedule 2 is simply a complete list of all violent offences in Part 1 and sexual offences in Part 2 that may attract a sentence of two years or more.
	Is it indeed the Government's intention that the sentencing court should automatically carry out the process of assessment of risk to the public whenever there is a conviction for one of those offences? There are more than 60 violent and more than 40 sexual offences listed in the schedule. Or will it be for the prosecution to draw the schedule's provisions to the court's attention? Clause 220(3) makes it mandatory on a second conviction for one of the scheduled offences for the court to assume—presume—risk to the public, so that the burden of establishing that it would be unreasonable to make such an assumption falls on the defence.
	The provisions contain a huge extension of legal work in court, imprisonment, Parole Board involvement and probation service work supervising licences—all very costly. We suggest that the emphasis is in the wrong direction.

Lord Carlisle of Bucklow: I strongly support what the noble Lord, Lord Thomas, said. The effect of the clauses taken together is bound to mean a substantial increase in the use of life imprisonment and in sentences of indeterminate length. In themselves, they are bound to increase the prison population. What is more, they are likely to have a knock-on effect on the length of sentences given for other offences of that nature.
	I wonder whether the Government have really thought through the vast increase in the prison population that that could cause. I invite the Minister to tell us what estimate they have of its effect on the prison population, on cost and, as the noble Lord, Lord Thomas, says, on services such as the probation service.
	While I am on my feet, perhaps I may raise another matter. If I understand the provisions correctly, if someone has committed a specified offence—which, as the noble Lord, Lord Thomas, said, is one of a numerous list to be found in the schedule—and, in the view of the court, it is a serious offence, the court is bound to consider whether there is a risk of serious harm to members of the public because of the possible repetition of that offence and, if it finds that there is, must sentence the person to life imprisonment if that is the maximum sentence. Equally, as I understand it, the court must make a public protection order if the maximum sentence is one of two years.
	I am not sure about what is meant by Clause 216. I ask this in genuine ignorance. Is it limited to offences for which the maximum would otherwise be 10 years' imprisonment? I ask that because Clause 216(2) states that if,
	"the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life",
	and if the court,
	"considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life, the court must impose a sentence of imprisonment for life".
	It then refers to,
	"a case not falling within subsection (2)".
	Since a serious offence is described as one of the specified offences, and many specified offences hold a maximum sentence of less than 10 years—for example, assault occasioning actual bodily harm, with a maximum of merely five years—does that mean that someone convicted of assault occasioning actual bodily harm could be the subject of a public protection sentence, which would be an indefinite sentence subject merely to release by the Parole Board? I think that I am wrong in what I ask, but I would be grateful for clarification from the Minister.

Lord Campbell of Alloway: Briefly, I wholly support what has been said by the noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle. There seems to be a most serious misunderstanding on the part of the Government on a much wider, general plane. The provision will result in a vast increase in the prison population. It is wrong for the Government to take any steps, even if they could be justified on any other grounds—frankly, I do not think that they are in this case. Until we have more prisons or acceptable prison statistics, and overcrowding has been addressed, the Government ought not to introduce that sort of legislation at all. Unless the Minister can give some form of concrete assurance that something will be done about the prisons which can accommodate the proposals, the Government should withdraw.

Baroness Kennedy of The Shaws: I, too, add my voice to those expressing concern about these parts of the Bill. The current position of Britain's prisons is nothing short of a scandal. The idea that the Government are adding to the shame of British prisons seems extraordinary. Sometimes when I ask how we can be travelling this road, I am told that the rationale is that we can empty the prisons only of people at the lesser end, and we can increase community service for offenders as an alternative to prison only if we are seen to be tough on those who commit serious crimes. The veneer is that we are tough in order to be kind.
	That rationale is not good enough. Politicians should make the political weather. They should explain to the public why we need to reduce the numbers of people going to prison. The idea that we can justify that only by becoming punishers of an extreme kind at the serious end is ridiculous. This is about trying to justify what is sensible, rather than giving the strong, good argument that people with problems, such as drug addicts and alcoholics, need alternatives. Rather than arguing from a position of justice and strength, the argument will be, "Look at us, you cannot accuse us of being soft. Here we are being tough at the other end of the scale".
	I ask the Government to take account of the fact that the provisions will ratchet up sentencing everywhere because the sentencing culture will become one of increase. Even if sentences are increased only at the serious end of crime, it will ratchet up sentencing everywhere. That is why the thinking is so profoundly wrong.
	I wish to speak in particular about how such legislation affects the morale in prisons. It has not been taken into account that the increases will introduce to prisons the sense of hopelessness that comes with such incredibly long sentences, nor how it makes it difficult for prison officers to try to manage prisons.
	I hope that the Government will think again on the matter. I do not believe for one minute that the public will be persuaded. The public are prepared and open to a much more nuanced, considered argument about what ought to happen to offenders and how they should be dealt with in our prison system.

Lord Hylton: The noble Lords, Lord Thomas of Gresford and Lord Carlisle, have rightly drawn attention to the financial and organisational costs that this chapter of the Bill will impose. The Government seem to be asking Parliament to write a blank cheque for unknown costs that might not be honoured because they will produce retrenchment and cuts in other parts of the Prison Service.
	I shall concentrate on the human costs of the legislation—initially, from the prisoner's point of view. If he or she is faced with a long, fixed-term or indeterminate sentence, with no possibility of release, why bother to change? Why not just stay the same, and in a violent and dangerous condition?
	Whole-life tariffs are likely to lead to individual despair and, very often, to suicide. The noble Baroness, Lady Kennedy of The Shaws, was right to ask about the legislation's effect on prison staff. Prisons will be severely tempted to become just warehouses of people. Staff will be able to shrug their shoulders and lay aside any attempt to get close to a prisoner, to help him forward or to help him to improve himself. The legislation is totally retrograde.

Lord Ackner: I wish to make the following point since the words "ratchet up" have been used, but I shall seek to develop it later. Schedule 17, to which we shall come in due course, ratchets up by 50 per cent or thereabouts the existing sentences for murder. They were the subject matter of guidelines issued by the Lord Chief Justice through a practice direction last year, after the Sentencing Advisory Panel had asked that the subject be addressed and the Lord Chief Justice had agreed the matter with the panel. He then communicated the resulting view to the Home Secretary, the Attorney-General and a third category. They made very slight alterations, and that was that.
	As the Committee knows, Schedule 17 was produced as a conditioned reflex action by the Home Secretary to learning that, as a politician, he was no longer entitled to any say in how long convicted murderers should stay in prison. The figures that he has laid down—from whole life, to 30 years and then 15 years on the subjectively chosen categories of murder—increase those guidelines by about 50 per cent. The Home Secretary has totally overlooked the fact that the guidelines are part of a sentencing practice that covers all associated crime.
	If the sentence for murder is increased by 50 per cent, the same approach has to be adopted for all other serious crimes. That has been totally overlooked by the Home Secretary. He talked about the delay factor, which applies in murder cases because those convicted would have had to do some time before their extended sentences came into operation. So, all serious offences have to go up by 50 per cent. That will render prisons totally inadequate to house those subject to those sentences and the cost of the measure will run into millions of pounds.
	In Schedule 17, the Home Secretary has automatically ratcheted up by about 50 per cent the sentences for murder and all serious crimes in the teeth of sentencing guidelines that were issued by the Lord Chief Justice as a practice direction after having consulted with and got the concurrence of the Home Secretary and the Attorney-General.

Lord Carlile of Berriew: I agree with what was said by my noble friend Lord Thomas of Gresford and others about the merits of the clause. However, I wanted to add one point that relates to Clauses 215 and 216 and I hope that this is an appropriate time to make it.
	If we have this new and, in my view, artificial category of serious offences for offences that already attract very significant sentences by judges exercising their daily judicial discretion, we will lengthen trials and the Crown Court process very considerably. No defendant faced with the possibility of a judge making a decision such as that provided for in Clause 216(1)(b) as a result of the categorisation of a serious offence in Clause 215, would risk pleading guilty. No lawyer would advise him to take that risk.
	We are not allowed to plea bargain in the Crown Courts of England and Wales—officially, at least. However, it is possible that the provisions would actually lead to a new form of illegitimate plea bargaining by counsel going into the judge's room to ask whether the defendant poses a significant risk to members of the public as provided for in Clause 216.
	The Government, quite rightly in my view, complain about the length of time taken over Crown Court trials and that not enough people plead guilty. The Government constantly remind us, as do judges, of the discounts available to people who plead guilty. The introduction of these two sections, including the category of serious offences in Clause 215, will be completely counter-productive and will clog up the courts with serious cases. Do the Government want that?

Baroness Scotland of Asthal: I will deal first with that last point made by the noble Lord, Lord Carlile. He said that the provisions may lead to lengthening sentences and an additional element of gaming. Of course, we expect—and my experience would promote the idea—that lawyers will continue to do that which they have always done with honour and integrity and advise their clients properly. If their clients disclose to them that they are guilty, I am sure that lawyers would continue to tell them that they must plead guilty. I hope that the noble Lord, Lord Carlile, was not seeking to suggest any impropriety in that regard.

Lord Carlile of Berriew: I am amazed that the noble Baroness could even imagine that I was. She knows from her own experience that, every day in the courts, defendants deny offences and their lawyers give them advice on their prospects of acquittal. The nature of the advice given to those clients depends upon the statutory provisions that this Parliament imposes on the courts. No responsible lawyer, in giving advice, would fail to give account to the full range of statutory provisions, including those relating to sentences.
	I remind the noble Baroness that it is commonplace in murder cases for defendants to be advised—completely properly and honourably by their counsel—whether to plead guilty, according, in part, to their prospects of acquittal of murder and conviction of the alternative of manslaughter.

Baroness Scotland of Asthal: I hear what the noble Lord says. Perhaps this is not the appropriate moment to enter into a detailed debate with him on those issues. However, in relation to dangerousness, the whole point of Clauses 215 and 216 is the protection of the public. In some cases, the assessment of dangerousness will be critical. It is not proposed that these provisions will extend improperly the investigation of those issues.
	To take up the points made by the noble Lord, Lord Thomas of Gresford, the increase in the information that would be before the courts will enable them to come to a better informed judicial assessment about the precise nature of the offender and the offending pattern of behaviour and seek to address those properly. I say this as clearly as I can: by introducing these provisions, it is not the intention of the Government to accelerate or exacerbate the prison population. However, we do intend to ensure that a just result is available when dealing with these matters.
	Of course, I accept what the noble Lord, Lord Dholakia, said about the nature of Amendments Nos. 195AA, 195AB, 197A and 197B because they are probing amendments. I will therefore not deal with their precise detail, but I will deal with them generically. The alternative definitions put forward in the amendments would create a higher threshold for the dangerousness provisions, thus potentially jeopardising the safety of the public. We will accordingly resist them. All sexual and violent offences listed in Schedule 12 carrying maximum penalties of 10 years or more are sufficiently serious to attract this sentence. The decision about whether the sentence of public protection will be passed will still be dependent on whether the court considers that the definition of dangerousness is met in each individual case.
	Amendments Nos. 195AB, 197A and 197B have been crafted so as to restrict the automatic assumption of dangerousness to offenders with one or more previous convictions for offences of a serious sexual or violent nature. We have considered the matter carefully, and we think that any offender who appears before a court for a second sexual or violent offence must be considered a threat to the public, regardless of whether the offences were of a serious nature. Restricting the provisions to offences of a serious sexual and violent nature could result in dangerous offenders being sentenced to a determinate rather than indeterminate sentence, thus causing an unnecessary risk of harm to the public. It is for that reason that the amendments should be resisted.
	The Bill provides a valuable safety net, to ensure that all offenders convicted of two relevant offences are assumed to be dangerous, prior to the passing of the sentence. We also hope that it will have a deterrent effect on offenders convicted of a single relevant offence, as they will know that, if they commit a second relevant offence, they will also be assumed to be dangerous. However, the clause allows the court to disregard the assumption of dangerousness in cases in which it considers it, on the basis of all the evidence, to be unreasonable. We will still have the safety net provided by the proper exercise of judicial discretion.
	Amendments Nos. 195AC and 195AD would remove certain violent offences from the list. It may be right to take the opportunity to say that including an offence on the list of specified offences does not automatically mean that conviction of one of those offences will result in the passing of one of the new sentences for dangerous offenders. In all cases in which an offender is convicted of a trigger offence, it will be up to the court to decide whether the offender poses a significant risk of serious harm to members of the public through the commission of further specified offences. If the court considers that the offender does not pose such a risk, it may not pass one of the new dangerousness sentences. We are talking about violent and potentially life-endangering offences that carry severe penalties, ranging from three years' imprisonment for affray to 10 years for rioting. It is right that the court should have the option to impose such a sentence on those convicted of such offences to protect the public from potentially dangerous offenders in cases in which it is necessary. For those reasons, I cannot accept the amendment.
	The noble Lord, Lord Thomas of Gresford, and others asked about the cost and the position of the Parole Board. The Parole Board will no longer deal with release decisions relating to prisoners who are serving determinate sentences of 12 months or more—the non-dangerous offenders. It will deal only with dangerous offenders, which will, we hope, balance its workload. The courts already assess dangerousness under Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and current extended sentences. It is right that those provisions should provide a helpful element of clarity, distinguishing offences that need greater attention from those that are less serious.
	My noble friend Lady Kennedy of The Shaws asked about the effect on prisons. The noble Lord, Lord Hylton, also referred to the Prison Service. It is right for me to share with the Committee the feelings of many working in the prisons about the changes that we are making. It is not just a matter of lengthening sentences. The Committee will know that prisons up and down our country are asked to do some things differently. Prison officers have told me, when I have had the advantage of meeting them, that they welcome the changes, including the increased use of risk assessment, from the moment at which the prisoner arrives in prison, and the increase in case management—we will continue with that—so that, once we have assessed the risks for the prisoner, we can assess the sort of things that we need to do with him. We now have a better case management and progression process with regard to discharge. We have the New Deal elements going in. People are considering the sorts of job that the prisoners can do and are planning their discharge in a better way. Jobcentre Plus is going into many of our prisons and making a difference. When I visited Bristol prison recently, I got from the prison officers a clear indication that they welcomed the emphasis that we put on trying to rehabilitate prisoners through drug treatment and the other things that are being done to mitigate the problems.
	I say to my noble friend that, far from depressing prison officers, the things that the Government are doing seem to be cheering them up. We have got balance. In these provisions, we are trying to maintain a proper balance.
	The noble and learned Lord, Lord Ackner, my noble friend Lady Kennedy of The Shaws and the noble Lord, Lord Hylton, talked about the ratcheting-up effect. The noble Lord, Lord Thomas of Gresford, may also have spoken about that. The upward effect on the prison population is balanced out by the automatic release provisions at the halfway point for other sentences of 12 months or more. The structure that we have put in place for rehabilitation, custody minus, custody plus and the intermediate sentences gives us a balanced portfolio.
	The noble Lord, Lord Carlile of Berriew, made some points about Clause 216. Clause 216 applies to serious offences that carry a sentence of 10 years or more. Indeterminate sentences are available only for offences carrying sentences of more than 10 years, including life. The life sentence is available only for offences carrying life imprisonment. Clause 218, which relates to extended sentences, covers offences carrying sentences of two years or more but under 10 years. All the provisions are designed to deal with those who are or may become a danger to the public and need specific and special attention, if the public are to be kept safe. We think that we have got the balance right, and we do not believe that the provisions will lengthen trials, as some fear, or that they will have the overall impact of ratcheting up other sentences.
	The Committee will know that murder and other serious offences tended to be in one category. The Sentencing Guidelines Council will have an important role in setting the boundaries for the other offences. The way in which the system is integrated will enhance the sense of security, give the courts a better grasp of the facts needed to come to an informed decision and enable us to discharge with a greater degree of certainty and security those who are not a serious threat to the public and do not create any concern about dangerousness. We will be able to monitor more effectively those who present such a danger.
	I hope that, with that explanation, noble Lords will not pursue the amendments.

Lord Thomas of Gresford: The noble Baroness has been good enough to reply to many of the points that I made, but I would be glad to know whether the Government have made any assessment of the additional pressure that there will be on prison spaces. By how much is the prison population expected to rise? If that assessment has been made, will the noble Baroness say how much this will cost and where the money will come from? If it has not been done, why has it not been done?

Baroness Scotland of Asthal: As I have said on several occasions, the provisions cannot be considered in isolation. They must be set against the other provisions that will relieve some of the pressure on the prisons. In my answer, I mentioned charging with conditions, custody minus—the new enhanced form of suspended sentence, along with other conditions—custody plus and intermediate sentences. All those measures should have a direct effect on what we seek to do.
	Contrary to the noble Lord's fear and to what my noble friend Lady Kennedy said about rehabilitation, Members of the Committee will know that the whole thrust of what we have done is to make it clear that every intervention with any individual who comes into contact with the criminal justice system has a meaning. From the moment a person first offends or first appears before the criminal justice service, he or she will have an intervention which will include an opportunity for rehabilitation, restoration and restitution. It is to be hoped that then there will be a situation in which only those who absolutely need to be in prison because of safety and security reasons are there.
	All those factors have been taken into account. The Government have made an assessment. We appreciate that additional resources will be needed in relation to probation and that we will have to fashion things differently. I have also made it clear on a number of occasions that we accept the provisions will be staggered over a period of time in order to ensure that they work well. In the Bill, we are seeking to provide the framework which will apply. We will be able therefore to do that which we all aspire to do; namely, to have those who can be rehabilitated rehabilitated, and to have those who need a significant period in custody to come to a realisation of the seriousness of their offences to have an opportunity to do that. Subsequently, if and when offenders are released, they will have a programme that will enable them to make the best use of their release and rehabilitation back into the community. It is to be hoped that they will not reoffend and cause further difficulty, pain and anguish to members of the public.

Lord Campbell of Alloway: Is the noble Baroness aware that, in error, she failed to answer the crucial question posed by the noble Lord, Lord Thomas of Gresford, which goes to the heart of the question of the prison population. I do not need to repeat it; I took the point with others. Has there been that assessment? Has there or has there not? That is one question. If there has not, why not? That is the other question. It is crucial to a determination of the matter which concerns so many of us who have spoken today.

Baroness Scotland of Asthal: I apologise to the noble Lord, Lord Campbell of Alloway, if he considers that I have not answered the question. In fact, I have answered the question now on three occasions. We have made assessments. We have taken into account all those matters. We believe that these provisions are deliverable within the context of the assessments that we have made.

Lord Carlisle of Bucklow: The noble Baroness has been very kind in dealing at length in answer to the question that I asked her about the clause. Is she saying that, under Clause 218, if a person is convicted before the magistrates' court of assault occasioning actual bodily harm—which she will know can cover a broad range of offences, however low in the order of assault occasioning bodily harm it is—and if it is thought that there is the possibility of a further offence being committed, the court must make an extended sentence order? Is that the position?

Baroness Scotland of Asthal: The emphasis is not "must" make an extended sentence order. The court has a discretion to consider the level of dangerousness presented by the offender and it must make that assessment. It does not mean that the court must impose an extended sentence on the offender, but it must consider the issue of dangerousness.

Lord Dholakia: I thank the Minister for her reply. As I said earlier, these are probing amendments. Certainly, we shall study in greater detail what she said, consider the implications and perhaps come back on this matter on Report. I thank Members of the Committee who have spoken about the impact of such policies on prisons. This morning a number of Members of the Committee were at the preview of a Channel 4 production on the impact of long and life sentences on people. We are faced with a desperate situation, which must weigh heavily when one looks at the provisions that the Government are making in this clause.
	Despite what the Minister said, the situation does not sound very promising. Despite all the positive initiatives that she has spoken about, the prison population is still unacceptably high at 72,000 plus. As one very senior prison officer said to me this morning:
	"If only we could control the prison population".
	In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 195AB not moved.]
	Clause 215 agreed to.
	Schedule 12 [Specified offences for purposes of Chapter 5 of Part 12]:
	[Amendments Nos. 195AC and 195AD not moved.]
	Schedule 12 agreed to.
	Clause 216 [Life sentence or imprisonment for public protection for serious offences]:

Lord Geddes: Before calling Amendment No. 195B, I should advise the Committee that if it is agreed to I cannot call Amendment No. 195C due to pre-emption.

Baroness Anelay of St Johns: moved Amendment No. 195B:
	Page 127, line 7, leave out from "a" to end of line 9 and insert "substantial risk of his committing further specified offences involving a significant risk of serious harm to members of the public"

Baroness Anelay of St Johns: In moving Amendment No. 195B, I shall speak also to Amendments Nos. 195C to 195H and Amendments Nos. 196 and 197. Amendment No. 195B is also supported by the noble Lords, Lord Dholakia and Lord Thomas of Gresford, Amendment No. 196 is supported by the noble Lord, Lord Dholakia, and Amendment No. 197 is supported by the noble Baroness, Lady Walmsley.
	The purpose of the amendments in this group is to develop in detail the arguments of principle which have so clearly been put during debate on the previous group. Perhaps I may remind Members of the Committee that throughout this part of the Bill, I have agreed to an unusually large grouping of amendments in order to assist the Government with their business on the Bill. We have reached yet another highly contentious part of the Bill, as evidenced by our debate. I undertake that where I do not have to speak because all has been said, I shall try to restrain myself, which is why I did so in the previous group of amendments.
	Much of the underlying principle has been laid out well. I note that if Members of the Committee continue to feel as strongly on other groups of amendments, in order that we complete Part 12, we will be here at 7 a.m. That is not to curtail discussion. It is merely to give an example—I notice that the Government Chief Whip is on the Front Bench—that there is insufficient time for this part of the Bill on the Floor of the House.
	All my amendments relate to Chapter 5, which contains the sentencing framework for dangerous offenders. Amendment No. 195B is identical to an amendment tabled in another place by my honourable friend. It relates to the precise wording of the definition by which the possibilities of a life sentence or the new sentence of imprisonment for public protection are to be triggered. Before imposing such a sentence, Clause 216 states that the court must first be of the opinion that,
	"there is a significant risk to members of the public of serious harm",
	as a result of the offender committing further specified offences.
	The way in which the court is to make that assessment is set out in Clause 220, to which reference was made briefly in the previous debate. In another place, there was some discussion about the wording of the provision and whether it provides a clear and precise enough definition of the threshold. The then Minister, Mr Hilary Benn, stated that there was,
	"not a big difference for the purposes of interpretation".—[Official Report, Commons Standing Committee B, 11/2/03; col. 930.],
	between the terms "significant" and "substantial". I beg to disagree. In its helpful briefing, Justice stated:
	". . . the term 'significant' . . . is not sufficiently precise in view of the grave consequences of a finding. What approximate level of probability, on a scale from 1 to 100 is 'significant'? It would be preferable, and more closely in tune with human rights law, if the term were 'substantial'".
	I agree. That also reflects the position taken by some of the other interested organisations which have briefed Members of the Committee. I am sure that the last thing the Home Secretary would wish for is that the courts declared the legislation incompatible under the Human Rights Act 1998. Do the Government believe that the test set out in the Bill is both appropriate and Convention-compliant? What consideration have they given to this matter over the past eight months since it was raised in another place?
	Amendment No. 195C relates to the phrase, "members of the public". The threshold for a life sentence or indefinite detention for public protection is crossed if "members of the public" might be exposed to harm from the offender. My amendment suggests a different form of words,
	"any person or class of person".
	I have tabled this simply because, when I first read through the Bill, I felt that the phrase "members of the public" is potentially too vague a test.
	Let us consider the following situation. A person is convicted of attempting to murder their spouse, with a history of domestic violence against that spouse and a previous spouse, but with no previous relevant convictions. Clause 220(2) would apply and there would be no presumption that such a person posed a risk to the public. Indeed, the court would not be obliged to take into account the history of domestic violence, which is a matter pertinent to Amendment No. 195H. Could the court conclude, when applying the test set out in the Bill, that such a person poses a risk to members of the public? Is that the Government's intention here? As I have said, could they be a risk to the public because the two people to whom they have been violent are both members of the public? How far does the definition go?
	Amendments Nos. 195D and 195E probe the extent to which the Bill will alter the existing arrangements for repeat serious sexual and violent offenders. I am sure that the Minister and her Bill team were not in the least surprised to see this amendment. The previous arrangements were set out by both Houses in the Crime (Sentences) Act 1997 and consolidated into Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000. That is, of course, the "two strikes and you're out" life sentence for a second, serious offence such as manslaughter, rape or armed robbery. That provision is to be repealed by this Bill. I would be grateful if the Minister could clarify the position in relation to offenders who would have received a life sentence under that provision. Will such offenders still receive life sentences or the new sentence of imprisonment for public protection purposes under the provisions set out in this Bill?
	As I read it, it would be possible for an offender convicted of two serious armed robberies, to whom a presumption in Clause 220(3) would therefore apply, then to contend that it is unreasonable for the court to consider that offender as posing a risk of serious harm to members of the public generally and therefore he or she should not receive a life sentence or a public protection sentence. What would happen in such a case?
	Amendments Nos. 195F and 195G raise similar issues, the first in relation to over 18 year-olds and the second to those aged under 18. Those convicted of what the Bill terms "specified offences" other than "serious offences" will not be eligible to receive life imprisonment or public protection penalties. To that end, Clauses 218 and 219 provide for the imposition of extended licence periods on such offenders where it is necessary for public protection. These offenders could not be convicted of specified offences such as Section 20 wounding, violent disorder or possessing indecent photographs of children.
	Subsection (4) of both the relevant clauses specifies that the period of a licence extension is limited to five years for violent offences and eight years for sexual offences. The maximum period for violent offences remains the same as set out in existing legislation and the noble Baroness further explained in her response to my noble friend Lord Carlisle of Bucklow the implications of that; they need not be repeated.
	My amendments have been tabled to ask the Government whether these restrictions are necessary. Why not simply allow the courts to impose an extended licence period up to the maximum sentence for the offence, which is what subsection (5) in both clauses provides for, and leave it at that? What are the reasons for imposing further restrictions on the court's powers?
	Finally—this is a large group of amendments and we have only one other mega-group of amendments to deal with—Amendments Nos. 195H and 196, by changing "may" to "must", would oblige the courts to take into account patterns of offending behaviour and information about the offender when considering whether those who commit specified offences, but have no previous convictions or are aged under 18, cross the dangerousness threshold. The Bill specifies that the circumstances of the offence must be taken into account, but that the court will then have discretion on the other two elements to which I have referred. Are these also not highly relevant, in particular in the case of juvenile offenders? Why do the Government use "may" rather than "must" here?
	I should point out that Amendments Nos. 196 and 197 were specifically tabled in response to a request and briefing from the Children's Society. Amendment No. 197 concerns the treatment of juvenile offenders who have been convicted of one of the offences specified for the purposes of Chapter 5. I shall welcome the Government's views on all these matters. We have not been able to hold before today the meeting proposed by the Government on the treatment of children throughout the Bill, so these amendments are essentially probing in nature, although the rest are not necessarily so. With regard to issues surrounding children, however, of course I am not in a position to proceed further today. We must not only hear from the Minister, but also take the opportunity, together with other noble Lords, to meet the Government. I beg to move.

Lord Renton: While supporting the amendments of my noble friend Lady Anelay, so far as they go, I feel bound to point out to noble Lords that Chapter 5, dealing with so-called "dangerous offenders", breaks new ground in our system of justice. Up to the present and for hundreds of years, imprisonment has been imposed for offences already committed. Of course, when an offender has committed one offence, there is always the risk that he will commit another. However, sentences have always been regarded as providing protection to the public in respect of an offence already committed because it is the hopeful assumption that, if the sentence is severe and realistic enough, no further offence will be committed.
	In Chapter 5, and especially in Clause 216, we find that imprisonment is to be imposed not only for offences already committed, but also because of the risk of another offence which may never be committed. That could lead to imprisonment for life for a person aged 18 years or over. It may be that I am not imaginative enough, but looking at this as a matter of principle and in the light of the long experience of our courts, it is something that we should be very reluctant to bring about by legislation.
	As I said at the beginning of my remarks, to an extent, the amendments proposed by my noble friend bring a little sense and justice into this matter, and for that reason I support them. But I ask noble Lords to consider this matter still further, in particular since in a later clause we find that people who have not yet reached the age of 18 can be dealt with in a somewhat similar manner. We must be careful.

Lord Carlile of Berriew: I, too, support these amendments on the grounds that almost anything that mitigates the rigour of these clauses is to be welcomed. When she responds, will the Minister explain to the Committee why the Government no longer trust the judges? When they came into office, I was foolish enough to hope that the new Government would give the judges the tools they needed to have a full range of sentences available, and then trust them to pass appropriate sentences subject to the normal appellate procedures. The Committee will know that where a serious offence is committed and the judge passes a seriously inadequate sentence, an appeal is available to the Crown. The number of Attorney-General references to the Court of Appeal has increased exponentially as the years have gone by and in 2002 there were in excess of 100 relating to sentences which the Crown Prosecution Service considered inadequate.
	The Government have taken the opportunity to increase maximum sentences—there are many offences for which the maxima have been increased—but there is very little evidence indeed that judges have passed inadequate sentences. Many of the references made to the Court of Appeal have resulted in it rejecting the prosecution's appeal against the sentence passed by the judge.
	These clauses refer to offences for which judges have considerable powers of imprisonment. Clause 215(2) defines a "serious offence" as one punishable by imprisonment for life or imprisonment in excess of 10 years. Why is it not enough for the judge to exercise his discretion within those maxima?
	I am not exaggerating when I say that much of sentencing law is becoming a macabre parlour game which judges are required to play when trying to thread their way through sentencing provisions which remove their discretion. If one takes the example of violent robbery, how is a judge, applying the provisions of Clause 216 with intellectual rigour, to conclude that because a person has committed a violent robbery once there is not a significant risk of that person committing a violent robbery in the future? This is not three and out or two and out; it has the potential of being one and out.
	I regret to say that these provisions have all the hallmarks of Kafka by the rules of cricket. I urge the Government to return to a system which is good enough to give the judges the equipment they need when sentencing but does not impose unrealistic obligations on them which will result in the Court of Appeal Criminal Division trying to weave its way through these provisions to do substantial justice, and Ministers once again attacking the judges, not on their merits but on the basis that bad laws have been introduced.

Lord Waddington: I doubt whether these clauses break new ground in the way suggested by my noble friend Lord Renton. In the old days judges could pass a sentence of preventive detention. What happened then was that the very fact that a person had committed a number of offences meant there was a risk of him committing further offences, and therefore the judges were entitled to pass a sentence of preventive detention. So to that extent these clauses are better than that old law because at least some assessment of risk has to be made. An assumption is not made that there must be a risk simply because there have been a number of previous offences.
	I agree entirely with my noble friend that "substantial risk" is a much better form of words than "significant risk". "Significant" means anything that is not insignificant. "Substantial" means "great". I believe that there should be a great risk rather than a risk which is not insignificant.

Baroness Scotland of Asthal: It may be necessary for me to say a word or two about the history. I have listened to what was said by the noble Lord, Lord Renton, and I feel that there may not be a proper understanding of the root from which these provisions have sprung.
	The Committee will know that a disparate set of provisions for the sentencing of dangerous offenders has been added to the statute book over a period of years. There are provisions for extended supervision periods for sexual and violent offenders and, where public protection issues are apparent, the court may impose longer than commensurate custodial sentences for offences that would otherwise not warrant them. That is the structure that we have now, which can be found in various Acts.
	The creation of a new sentence specifically designed for offenders who have been assessed as dangerous by the courts was a recommendation of the Halliday report. The report identified a lack of disposal for offenders who had committed offences which do not carry life but who, nevertheless, have a high risk of committing a further offence that would cause serious harm to the public. Consultation on the Halliday report found strong support from the police and probation services for new sentences specifically designed for dangerous offenders. They welcomed a sentence which would limit the premature release of dangerous offenders.
	So, in answer to the concern raised by the noble Lord, Lord Renton, and others—the noble Lord, Lord Waddington, is right to remind the Committee that the previous position was somewhat more complex—that is the root of what we are trying to achieve under Clause 216. We are trying to make sense of that which went before and to produce coherence in the way in which it is applied.
	I hear what the noble Lord, Lord Carlile, says. Time and time again I have heard the refrain, "Why do we no longer trust the judges?" I cannot recall how many times I have said this but I am very happy to say it again: we do trust our judges. They are deserving of our admiration and our support. The judges in this country are among the very best in the world and I give no quarter to anyone who says differently. We are right to be proud of them.
	On each and every amendment dealing with issues on which noble Lords want to be more restrictive—I know that the noble Lord, Lord Carlile, has been with us in part but not on each and every occasion and so has not had the benefit of listening to me say this over and over again, which I am happy to do—

Baroness Anelay of St Johns: Perhaps the Minister would indicate whether she is referring to the noble Lord, Lord Carlile of Berriew, or to my noble friend Lord Carlisle of Bucklow.

Baroness Scotland of Asthal: I am referring to the noble Lord on the Liberal Democrat Benches. I tend to get confused as to which noble Lord is "Bucklow" and which one is not. Perhaps I should say that the noble Lord, Lord Carlile, who sits comfortably on the Liberal Democrat Benches, is not always with us and the noble Lord, Lord Carlisle, who sits on the Tory Benches, is almost never without us. We very much rejoice at his presence in all our deliberations.
	So that is the history. In this case, it is quite clear that, once again, we will be totally dependent on our judges to exercise their discretion in determining, in accordance with the structure, whether or not a defendant is dangerous. The Bill sets the framework. What we ask our judges to do—and they do it splendidly—is to exercise that discretion so that justice can be done. I hear what the noble Lord says about Kafka. I am sure that he enjoys the rhetoric, but that is far from the reality.
	Let me now turn to the amendments and deal with the points raised by the noble Baroness, Lady Anelay. I say straightaway that the Bill is compliant. The Government are content that its provisions comply with all propriety to the ECHR.
	Amendment No. 195B seeks to alter the threshold of dangerousness which must be met in order for a life sentence of imprisonment for public protection to be passed by the courts. The alternative test proposed by Amendment No. 195B would require the court to focus upon the risk of the offender committing a further specified offence involving a risk of serious harm to the public. As my right honourable friend in another place said, there cannot be a possibility of significant risk to the public if there is no risk of a further offence being committed. However, this does not mean that the risk of reoffending should become the basis of the assessment of dangerousness, as is proposed by Amendment No. 195B. Rather, the central element of the test of dangerousness should be the risk to the public of serious harm through the commission of a further offence.
	The whole purpose of the test is to establish whether an offender is dangerous or no. In making such a judgment, the court must focus primarily on the degree of risk of harm that any future offending may pose as opposed to the risk of reoffending itself.
	Amendment No. 195GA also attempts to alter the threshold for the test of dangerousness. This amendment would raise the threshold by requiring the courts to establish that the risk to members of the public of serious harm occasioned by the commission by the offender of further offences was a substantial risk rather than a significant risk. We think that "significant" is the proper test. The court will then be put on inquiry whether it is satisfied about the dangerousness. It can exercise its discretion and make that judgment. It is the assessment of the risk and the risk to the public that we are trying to direct attention to.

Lord Waddington: What does significant mean? Am I not right that significant means "not insignificant"? It is a very small test to pass.

Baroness Scotland of Asthal: We do not think it is a small test, we think it is an appropriate test. I appreciate that noble Lords opposite are saying that they wish to set a very high threshold by saying that the risk should be substantial. If there is a significant risk to the public, we think that that gives rise to the court addressing the risk and determining whether it is appropriate or proper in a particular case for these extended or different provisions to prevail. It does not oblige the court to do so; it just raises the issue that it has to consider.

Baroness Kennedy of The Shaws: May I point out to my noble friend the Minister the irony of a former Home Secretary, who was no pussycat, let me tell you, when it came to law and order, and was known to be tough on crime—I say that respectfully about the noble Lord, Lord Waddington—putting his restraining hand on the shoulder of a Labour Government?

Baroness Scotland of Asthal: I thank my noble friend for pointing that piece of history out to me—it would obviously have escaped me had she not done so.

Lord Alexander of Weedon: If I apologise to the Minister, perhaps I may make a rather more prosaic point than the eloquent one just made. My memory is that in the days when we were allowed to use Latin in court, it was said that anything was significant which was more than de minimis. Does the Minister subscribe to that view?

Baroness Scotland of Asthal: I think we could bandy words on that, too. I think "significant" means important. "Significant" is certainly different from "substantial". I have already said that I accept that by substituting "substantial" for "significant", noble Lords are seeking to raise the threshold to a higher level. I have sought to say that if there is a significant risk of harm, that puts the court on inquiry to exercise its discretion. The decision made by this Government is that that is the appropriate test and it is the appropriate entry into the consideration. There is clearly a difference between what noble Lords opposite would like and what the Government propose.

Lord Thomas of Gresford: With respect to the Minister, she says there is a great difference, but we do not understand where the Government stand. She has used the words "the degree of risk". She was invited by the noble Baroness, Lady Anelay, to give on a scale of 1 to 100 what she regarded as significant. What is it—10, 20, 30? What degree of risk, to use the Minister's own words, is she referring to?

Baroness Scotland of Asthal: I have been harried on a number of occasions about trusting the judges. A significant risk is one which is significant. It will be a matter for the judge to determine when considering that risk whether it is present or not.
	As I have said for the fourth, if not the fifth, time: there is a difference between "substantial" and "significant". I have accepted that "substantial" is greater than "significant". We think that if there is an important issue—if there is an important risk, a significant risk—that should put the court on inquiry to consider whether this person should properly be described, according to the criteria, as "dangerous". That is the difference between the way in which the Government put it and the way in which other Members of this House have put it.
	It is invidious to use a scale from 1 to 10. What if I say "significant" is at 6 and substantial at 9, while other people say "significant" is at 5 and "substantial" at 7? There is no point in bandying words in that way. It is a bit like an elephant—it is difficult to describe but you know one when it is charging at you. I do not think that the courts will have any difficulty in making those definitions.

Lord Carlisle of Bucklow: Would the Minister agree that it is important for the following reason? These are offences for which, in any event, the court can, if it wishes and thinks proper, pass a sentence of life imprisonment. If it finds that there is a significant risk, the Bill goes on to say that it "must" pass a sentence of life imprisonment. Surely, therefore, if you have the difference between the discretion of a judge in deciding whether life imprisonment is right and the requirement that the court "must" impose life imprisonment, the test that should be passed must be a substantial one rather than merely significant.

Baroness Scotland of Asthal: The noble Lord is right to point out the importance of this. If the court is satisfied that there is a significant risk that the individual will go on and commit offences causing serious harm to the public, I hope that noble Lords will agree with me that that is a very important decision for the court to take. It would have to be satisfied on evidence that that risk really was significant. Only if it was so satisfied would the court then deal with that matter.
	Noble Lords will know as well as I do how jealously our judges properly look at these issues in order to be just and to be fair. Nothing in these provisions would inhibit the court from so doing. We think that it would be an appropriate course to take. When we consider the interests of the public protection, it is right for an offender who has committed a sexual or violent criminal offence and poses a significant risk to members of the public of serious harm to be deemed by the court to be dangerous. We do not wish to place the public in a position of greater risk from potentially dangerous offenders by raising this threshold unnecessarily.
	Amendment No. 195C suggests a minor drafting change to the definition of dangerousness for the purposes of passing the new sentence of public protection. The terminology in the test, as currently drafted, is consistent with the drafting throughout of Chapter 12. We believe that "members of the public" is the appropriate phrase to use—it is better and easily understood. We do not think it would cause unnecessary difficulty.
	Amendment No. 195D seeks to retain a reference to provisions in the Powers of Criminal Courts (Sentencing) Act 2000 for a life sentence to be passed where a second serious offence has been committed. Amendment No. 195E makes a small drafting change in conjunction with Amendment No. 195D. The life sentence provisions referred to at Section 109 of the Powers of Criminal Courts (Sentencing) Act are repealed by the Bill, but the principles behind them are incorporated into, and extended by, the automatic assumption of dangerousness in Clause 220(3).
	Under the new provisions, any offender who has been convicted of a second sexual or violent trigger offence in Schedule 12 will be assumed to be dangerous by the court unless, on the basis of all the evidence before it, the court considers the assumption to be unreasonable. Where an automatic assumption of dangerousness is made, the offender must be sentenced to either the extended sentence or the sentence for public protection. Release from both of these sentences is dependent upon thorough risk assessments, and offenders may be detained for as long as they pose a risk of harm to the public.
	Therefore Amendments Nos. 195D and 195E should be rejected because the automatic assumption of dangerousness provisions provide a higher level of public protection than the automatic life sentence provisions, as they apply to a far greater range of sexual and violent offences. Those amendments would also be unhelpful in retaining a reference and preserving the effect of a repealed provision.
	Amendments Nos. 195F and 195G would remove the maximum time limits for periods of extended supervision that may be added to the new extended sentences for dangerous offences. The amendments cannot be accepted because they would provide for indeterminate extended supervision periods that could have no practical effect due to the legal principle that no sentence may exceed the maximum penalty of the offence for which it is being imposed. The extended sentence is available, in the case of adults, only for offences carrying a maximum penalty of less than 10 years. Therefore the maximum extended supervision period that may be added must be less than 10 years, illustrating the impracticality of Amendment No. 195F. However, I know that the noble Baroness, Lady Anelay, is simply putting those skittles up to understand how the Government will deal with and dispose of them.
	Similarly, although the extended sentence for dangerous juvenile offenders may be passed for offences carrying higher penalties, the length of the maximum extension period must be specified in order to provide legal clarity. Therefore, I hope that the noble Baroness will understand why it is impossible for us to accept Amendment No. 195G.
	Amendments Nos. 196, 195H and 197 would require the courts to take into account additional information about the offender, the pattern of behaviour of which the offence forms a part and the offender's welfare and rehabilitation needs when undertaking the assessment of dangerousness. While the Government are wholly committed to upholding the welfare of children, that must be balanced against the need to protect the public. The objective of the dangerousness assessment is to establish whether the offender poses a significant risk of serious harm to the public. In order to determine whether the risk is present, the court is required to take into account all the information about the nature and circumstances of the offence. It may also take into account additional information about the pattern of behaviour of which the offence forms a part, and the offenders themselves.
	Requiring the court to take into account all additional information concerning the pattern of behaviour of which the offence forms a part and the offenders, including their welfare and rehabilitation needs, as is suggested by Amendments Nos. 196, 195H and 197, would detract from the purpose of the dangerousness assessment. The additional information may not be relevant for the purposes of assessing risk, and its inclusion could undermine the relevance of any significant risks posed, thus potentially jeopardising the safety of the public.
	We believe that Amendment No. 197 is unnecessary, too, because there is already provision in the Children and Young Persons Act 1933 which requires courts to have regard to the welfare of juveniles when sentencing them. That is there, and nothing that we say here will detract from that.
	We have tailored sentences to meet the requirements for juveniles. The court will not be obliged to pass an indeterminate sentence for a serious offence, but will have the option of an extended sentence. That comment relates to the whole piece—it does not compel but requires courts to consider and make assessments and to exercise judicial judgment whether any or all of those terms are met.

Lord Ackner: Will the Minister help me? This is a genuine cri de coeur, because I find that my recollections become daily more atrophied. However, the noble Lord, Lord Carlisle of Bucklow, may be able to help me.
	Some 25 years ago, was there not a departmental committee set up by the Home Office and presided over by the noble Lord, Lord Carlisle of Bucklow? I know that I was unofficially asked to go on it, but the Lord Chief Justice in his wisdom put someone else there instead. The committee produced something called a "reviewable" sentence, which meant that, when there was a suspicion about the balance of the person and that he might commit further offences, a determinate sentence was passed as was appropriate, but it was made reviewable every two or three years, and the decision was made by a committee.
	My recollection is a little clearer as regards an inquiry that took place five, six or seven years ago, under a silk on my circuit called Peter Fallon QC, into a case in which someone who was let out at the end of a determinate sentence killed again. My recollection is that Peter Fallon QC made a recommendation similar to the need for a reviewable sentence of the kind that emanated from the Home Office some 25 years ago but which has been totally neglected. Had that option been considered by the Home Secretary or the Home Office, it might have solved many of the difficulties that have arisen.

Lord Carlisle of Bucklow: The noble and learned Lord, Lord Ackner, is partly right and partly wrong. I did chair a committee that reviewed the parole system. He is right in believing that he was not a member of it and that the Lord Chief Justice named the judge who was a member. We were limited to considering parole, however, and what we recommended was what has been the position since—that all those sentenced for up to four years should be released automatically at the halfway stage. Those people would be under supervision for the rest of their sentence to the two-thirds point, in the normal way. They would be liable to be returned to prison if, at any time during the whole period of the original sentence, they committed any other offence. Beyond the four-year point, we recommended that they should be reviewed regularly by parole. We did not suggest a two-year review as such.

Lord Ackner: I do not want to fall out with my noble friend, but I am referring to something that occurred well before that. The person who sat was David Croome Johnson. I may have been wrong about the chairmanship, but the committee produced a reviewable sentence. I am quite clear that Peter Fallon QC adopted something similar. I wondered whether that option had been given any thought, as it is obviously a potential solution to the type of problem that we are discussing.

Lord Dholakia: Before the Minister answers that question, does she consider that the sentences proposed under this clause represent a massive leap in the restriction of children's liberty and introduce a mandatory element for a wider range of offences? It is hard to see how these new sentences meet the UK's obligation under the United Nations Convention on the Rights of the Child. Is the Minister aware that the UNHCR expressed concern about the increasing use of custody for children, especially young children, and their treatment in captivity?

Baroness Scotland of Asthal: I say to the noble and learned Lord, Lord Ackner, that I have certainly seen no evidence of atrophy although I confess that daily I see evidence of my own.
	I cannot tell the noble and learned Lord whether the particular report to which he referred has been taken into account. I certainly undertake to ascertain whether it has. The Committee will know that the Halliday report took into account all that had gone before, reviewed the known position and the research and made recommendations on that basis. Therefore, I would be surprised if those reports did not form part of the considerations and deliberations that Halliday entered into. That is why I said in answering the earlier group of amendments—but it is equally important as regards this group—that the whole purpose of this clause was founded on the recommendations of the Halliday report. It identified a specific lacuna in terms of dangerousness; namely, that there are those who should properly be dealt with for the offence for which they come before the court but who constitute an element of dangerousness to the public which needs to be taken into account before they can be safely discharged into the community. We suggest that the new sentence seems to achieve that relatively well.

Lord Ackner: Fading memory is beginning to clear slightly. The committee was under the chairmanship of Lord Butler, the then Home Secretary, I think. I should have thought that my noble friend Lord Renton might remember that but it certainly existed and I shall provide the Minister with something about it directly.

Lord Renton: Before we depart from this group of amendments, will the noble Baroness look at those parts of Clause 216—we find the same problem arising later—where the court, instead of being given a discretion, must impose a sentence of imprisonment for life? No discretion is given to the court even though the offender may be only just 18 years old. Will the noble Baroness give an undertaking to reconsider that imposition upon the court when quite honestly she knows, as we all know, that no two cases are the same? The circumstances vary enormously. The amount of guilt varies enormously. The prospect of future commission of offences varies enormously. To leave the court without a discretion—which the courts have always had for serious matters—is not the way that we should legislate.

Baroness Scotland of Asthal: Before I answer the noble Lord, Lord Renton, I wish to respond to the point made by the noble Lord, Lord Dholakia, about restricting children's liberty and our duties under the UNCRC and the recommendations that are made. We have taken those issues very much into account. The Committee will know that, thankfully, the provisions will refer to very few juveniles. We have tried to establish the right balance. The noble Lord will have seen from our other provisions regarding children that we seek to draw a distinction between the way in which we treat juveniles as opposed to adults. We have tapered the provisions so that the court will have an opportunity to consider the rare cases—mercifully, they are rare cases—where children of a relatively young age are found guilty of the kind of offences that we are discussing. We believe that we have sufficient safeguards in place.
	I turn to the question of the noble Lord, Lord Renton. When looking at the provisions of Clause 216, it is important to remind ourselves what subsection (2) actually provides. A number of things have to be established. Subsection (2) states:
	"If—
	(a) the offence is one in respect of which the offender would apart from this section be liable to imprisonment for life—
	that is the first criterion—
	"and
	(b) the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of imprisonment for life".
	Those are significant, or rather substantial, hurdles over which one must leap before the court, being so satisfied, then must impose a sentence of imprisonment. Under Clause 216(2), the court has to exercise its discretion in relation to (2)(a), then in relation to (2)(b). Only if the court is satisfied that (a) and (b)—it is not a case of "or" but "and"—are satisfied must it then impose the imprisonment. If the court finds that (a) and/or (b) are not so satisfied, it has the opportunity not to impose life imprisonment. Then, of course, all the other ways of dealing with the offender are open to the court. We believe that the provision is clear and that it is a perfectly sound way of dealing with the matter.

Baroness Anelay of St Johns: I am grateful to the Minister for her careful response to a whole host of questions on this large group of amendments. I address the skittles point first—I refer to the elegant term that the noble Baroness used to describe my amendments. Some of them were indeed skittles but not all. I thank the noble Baroness for her response on Amendment No. 195C. I accept her assurances with regard to it and I shall not return to it on Report. I shall consider her responses to Amendments Nos. 195D to 197, particularly, as I signalled earlier, those responses that concern children. I shall, of course, report back to the Children's Society and take a sounding on its response to the noble Baroness's comments.
	I thank all those who supported these amendments. We are trying to introduce the word "substantial" and make it clear. The Minister took the noble Lord, Lord Carlile of Berriew, to task for his rhetoric. My experience of his rhetoric so far on this Bill is that it tends to illuminate the reality of the world in court. I am grateful to him for that rhetoric.
	On Amendment No. 195B I believe that there is a disagreement between us on the appropriateness of the drafting. I am convinced that Justice is right and that the correct word is "substantial" not "significant". I can have no better proof of that than to be supported on the matter by my noble friend Lord Waddington. With him behind me on the matter, I know that I am not being soft on crime. I wish to seek the opinion of the Committee.

On Question, Whether the said amendment (No. 195B) shall be agreed to?
	Their Lordships divided: Contents, 137; Not-Contents, 120.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Geddes: As previously explained to the Committee, now that Amendment No. 195B has been agreed to I am unable to call Amendment No. 195C due to pre-emption.

[Amendments Nos. 195C to 195E not moved.]
	On Question, Whether Clause 216, as amended, shall stand part of the Bill?

Lord Monson: I want to touch on an aspect of the matter that, to the best of my knowledge, has not so far been discussed.
	Like the noble Lord, Lord Renton, and a great many others as the previous Division testifies, I am uneasy about the clause. I am uneasy about subsections (3) and (4) in particular. As I interpret them as an admitted layman, they seem to provide that an individual who might be expected at present to spend, for example, four or five years in prison after remission could in the future spend 10 or 20 years there for exactly the same crime if he is deemed to be dangerous. I am sure that most of us feel unhappy about the idea of keeping people behind bars, no longer because of what they have done, but because of what they might just possibly do in the future. That is exactly what will happen if men—and it will almost always be men—are kept in prison after they have served a period of years that the trial judge, as matters stand, has deemed appropriate and adequate—I stress the word "adequate"—for the purpose of deterrence and retribution. In other words, they will no longer be fairly punished for the crime or crimes of which they have been convicted; they will henceforth be held in preventive detention.
	The Government may well be right in their argument that de facto preventive detention is the lesser of two evils and that the clause is therefore necessary. The noble Baroness has, as usual, made her case for the clause extremely effectively. However, if individuals are to be detained in prison after their normal release date, for the purpose not of punishment but of prevention, is it not right that their detention should be made as comfortable as possible, consistent with security?
	For obvious reasons, open prisons are a non-starter for that kind of individual, but within a necessarily secure prison, should not such detainees, as they might fairly be described, be entitled, for example, to superior accommodation, better food, more family visits, a chance to earn money at the market rate and so on? If so, should not such entitlements, contingent of course on good behaviour, be enshrined in statute rather than merely left to the discretion of prison governors, always assuming that the prison governors have the power to exercise such discretion, which may or may not be the case?
	I apologise for bouncing the matter on the Minister, but she is extremely quick on her feet. I would therefore be grateful if she would indicate, without in any way committing either herself or the Government, whether she agrees that there is force in my argument, in which case it may not be too late to take the matter forward on Report.

Lord Thomas of Gresford: I support the sentiments expressed by the noble Lord, Lord Monson. We on these Benches are unhappy with the provisions of Clause 216 because of the forensic exercise that has to be carried out. Reference is made to preventive detention as a familiar sentence from the past. We were used to dealing with that, but it was very much at the discretion of the judge to make such an order.
	The provisions before us bring about the following: the advocate addresses the judge on the basis that he should not accept that there is a significant risk that the person in question will re-offend. The judge then comes to an opinion; he forms no more than an opinion. On the basis of that opinion, having heard argument on both sides, he comes to a conclusion. If that conclusion is adverse to the defendant, he must—there is no discretion—sentence him under Clause 216 to life imprisonment. The defendant receives life imprisonment not for what he has done, but for the judge's opinion of what he might do in the future. To us on these Benches, that is fundamentally wrong and we will address it further on Report.

Baroness Scotland of Asthal: I am happy to explain Clause 216 further, because I appreciate that the noble Lord, Lord Monson, does not quite understand how the provisions come into play. I note that he was supported by the noble Lord, Lord Thomas of Gresford.
	As I pointed out earlier, Clause 216 provides the new offence of imprisonment for public protection of sexual and violent offenders, aged 18 or over, who have been assessed to be dangerous. It is just those who are perceived as being dangerous who will be subject to the provisions.
	Sexual and violent offenders who have been assessed as dangerous and who have committed "a serious offence" that carries a sentence of 10 years or more, as defined by Clause 215, must be sentenced either to imprisonment for public protection or to a discretionary life sentence. At the moment, all offenders other than those who have been sentenced to life imprisonment must be released after they have served two-thirds of their sentence, regardless of whether they continue to pose a serious risk to the public. There will be those who pose that risk, but they will be discharged.
	The new sentence will ensure that such offenders cannot be released until their risk is considered manageable in the community. It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety. However, that must be seen in the context of everything that we are trying to achieve in prisons; that is, first, to address the nature of the underlying offending behaviour and, secondly, to try and rehabilitate, if rehabilitation is possible, some of the more serious offenders through training, education and opportunities. I have mentioned that once an offender is in prison, there will be an assessment of the nature of his difficulties and the risks that he poses so that, while he is in prison, we can seek to address those problems.
	I obviously take account of the concerns expressed by the noble Lord, which were echoed by the noble Lord, Lord Thomas of Gresford. He said that if such offenders are to stay in prison for a very long time we should look seriously at how they are accommodated and the kind of conditions that we make available to them. I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure. If we are able to roll it out, and we hope to be able to do so over a period of time, the Prison Service will have the kind of tools necessary to make the assessment which will help to bring about change, but which will also identify those people who may not be as amenable to change as we would like and who therefore continue to pose a risk to members of the public.
	Noble Lords will know that, tragically, there have been occasions when people have been released from custody and have re-offended in a relatively short compass. We wish to reduce the number of cases in which that happens. The only way we can do that is by instituting appropriate risk assessments on behalf of all the criminal justice agencies to try to limit the prospect of that happening. I understand the concerns of the noble Lord, but we consider the provisions to be helpful.

Lord Monson: I am grateful to the noble Baroness for that explanation. I believe I understand entirely what the Government are trying to do and the noble Baroness has made a good case for it. I merely ask that those who are kept on in prison beyond the normal time at which they would expect to be released, for the purposes of prevention rather than punishment, should be kept in as comfortable conditions as possible consistent with security.

Baroness Scotland of Asthal: We share that aspiration and we intend to do all we can to make sure that each prisoner is appropriately housed, bearing in mind the risks that they pose and the needs that they may have.

Clause 216, as amended, agreed to.
	Clause 217 agreed to.
	Clause 218 [Extended sentence for certain violent or sexual offences: persons 18 or over]:
	[Amendment No. 195F not moved.]
	Clause 218 agreed to.
	Clause 219 [Extended sentence for certain violent or sexual offences: persons under 18]:
	[Amendment No. 195G not moved.]
	Clause 219 agreed to.
	Clause 220 [The assessment of dangerousness]:
	[Amendments Nos. 195GA to 197B not moved.]
	Clause 220 agreed to.
	Schedule 13 [Scottish offences specified for the purposes of section 220(4)]:

Baroness Scotland of Asthal: moved Amendment No. 198:
	Page 255, line 21, leave out from "Act" to end of line 22 and insert "(detention of woman in brothel or other premises)"

Baroness Scotland of Asthal: In moving Amendment No. 198, I shall speak also to Amendments Nos. 199 and 200. All of these are minor drafting changes to the sexual and violent offences listed in Schedules 13 and 14 that may trigger the new sentences for dangerous offenders. These amendments are consequential to the changes in the Scottish and Northern Irish legislation. I beg to move.

On Question, amendment agreed to.
	Schedule 13, as amended, agreed to.
	Schedule 14 [Northern Ireland offences specified for the purposes of section 220(4)]:

Baroness Scotland of Asthal: moved Amendments Nos. 199 and 200:
	Page 259, line 11, leave out paragraph 66.
	Page 260, line 19, at end insert—
	"87A An offence under Article 20 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (assault with intent to commit buggery).
	87B An offence under Article 21 of that Order (indecent assault on a male)."
	On Question, amendments agreed to.
	Schedule 14, as amended, agreed to.
	Clause 221 agreed to.
	Schedule 15 agreed to.
	Clauses 222 to 228 agreed to.
	Clause 229 [Power of court to recommend licence conditions for certain prisoners]:

Lord Thomas of Gresford: moved Amendment No. 200A:
	Page 132, line 33, leave out "particular" and insert "reasonable"

Lord Thomas of Gresford: We seek to make a small amendment to Clause 229, replacing the word "particular" on page 132, line 33, with the word "reasonable". The amendment is clear. We believe that a court should not be able to insert any particular condition into the licence granted to an offender, but that that condition should be reasonable. I beg to move.

Viscount Bridgeman: I want to speak to Amendments Nos. 203A and 204A in the names of my noble friends Lady Anelay and Lord Kingsland. Clauses 235 and 236 contain the key provisions that the Government propose should operate in future to govern the early release of fixed-term prisoners. In some key respects, particularly for those prisoners serving long sentences of imprisonment, they represent a major departure from the current arrangements. My noble friend has tabled the amendments in order to enable Members of the Committee to consider these changes so that the Government can justify their proposals to the Committee and to the wider public.
	The present arrangements for the release of fixed-term prisoners are contained in the Criminal Justice Act 1991. That Act provided that those prisoners serving custodial sentences of up to four years, commonly called "short-term prisoners", should serve half their sentence in prison and the remainder on licence. Since 1999, the Government's home detention curfew scheme has allowed short-term prisoners to be released on electronic tags up to three months before the half-way point. Thus, someone serving a sentence of two years could serve up to 12 months but might serve only nine months before being released on an electronic tag.
	The arrangements are different for prisoners serving four years or more—long-term prisoners. Currently, they serve at least half their sentence in prison before becoming eligible for parole and are released automatically on licence after serving two-thirds. Thus, at present, someone sentenced to six years, for example, if he were refused parole, could serve up to four years before being released.
	The Bill makes a fundamental alteration to these arrangements for long-term prisoners. Clause 235 abolishes the concept of parole for long-term prisoners and provides that all those serving custodial sentences of 12 months or more should be released at the half-way point. Clause 236 also extends the home detention curfew scheme by applying it to all prisoners, not just those serving fewer than four years, and increasing the extra discount that may be given to a maximum of 135 days, which is a little more than four months.
	The result of all this is that any prisoners serving a sentence of four years or more can expect to spend a good deal less time in custody than they do at present. The important point is that these are almost invariably prisoners who have committed serious offences. I ask the Committee to consider the following three examples. Offender A is convicted of wounding with intent to cause grievous bodily harm after "glassing" his victim in a drunken pub brawl. He is sentenced to six years' imprisonment. Although he could have been sentenced to imprisonment for public protection, the court is satisfied that he does not impose a significant risk to the public.
	Under current arrangements, he would have to serve a minimum of three years before applying for parole and if this is denied would be released only after four years. As a long-term prisoner, he would not be eligible for home detention curfew. Under the Bill's provisions, he would be released automatically after serving three years and could be released on home detention curfew after serving two years and eight months. The potential difference made by the Bill in A's case is that he could serve up to one year four months less of his six-year sentence in custody than at present, serving two years eight months rather than four years.
	Consider offender B: a serial burglar with a long record who is convicted of a number of burglaries at the homes of old and disabled people. He is sentenced to eight years' imprisonment. Because no violence is involved, he is convicted of the ordinary offence of burglary and so cannot be sentenced to imprisonment for public protection. Under the current arrangements, this offender would serve a minimum of four years before applying for parole and if this is denied, he would be released only after five years and four months. As a long-term prisoner, he would not be eligible for home detention curfew.
	Under the Bill's provisions, this burglar would be released automatically after serving four years and could be released on home detention curfew after serving three years and eight months. Thus, the potential difference of the Bill in offender B's case is that he could serve up to one year eight months less of his eight-year sentence than at present, serving three years and eight months rather than five years and four months.
	Finally, consider the case of offender C: a notorious drug baron who is convicted of importing a massive quantity of heroin and is sentenced to 12 years' imprisonment. Because this is not a violent or sexual offence, there is no question of the court imposing a public protection sentence. Under the current arrangements, he would have to serve a minimum of six years before applying for parole and if this is denied, he would be released only after eight years. As a long-term prisoner, he would not be eligible for release on home detention curfew.
	Under the Bill, offender C would be released automatically after serving six years and could be released on home detention curfew after serving five years and eight months. So, the potential difference made by the Bill in C's case is that he could serve up to two years and four months less of his 12-year sentence than at present, serving five years and eight months rather than eight years.
	These three examples and the sentences passed are all realistic and in all of them the Bill could make a massive difference to the amount of time spent in custody. I am particularly concerned about the Bill having the effect that drug dealers and serial burglars, as well as those violent and sexual offenders who receive determinate sentences, will serve less time in custody.
	I believe that these provisions deserve the clearest justification from the Government. Many thousands of offenders, some of them convicted of very serious crimes indeed, will be released from prison much earlier as a result of what the Government are proposing; namely, the reduction from serving two-thirds to serving half of the sentence, with the added reduction if the offender is released early on the tagged curfew. That decision alone flies in the face of the previous Home Secretary's commitment, given to another place on 29th November 1999:
	"We have no plans or intention whatever to provide for electronic tagging to facilitate the early release of serious . . . offenders. Let me make that clear, with a full stop—none whatever".—[Official Report, Commons, 29/11/99; col. 27.]
	The Bill allows precisely that: it cuts the maximum time that many serious offenders, such as drug dealers and serial burglars, will spend in prison, as well as allowing their release even earlier on electronic tags. I hope that, in his reply, the Minister will explain the reasons behind that course of action.

Lord Filkin: In rising to respond to these amendments, having joined as a late substitute the government team on this Home Office Bill, I want to make a declaration of interest before I begin. My step-daughter is a prison governor, but unfortunately I have not had the benefit of discussing these measures with her.
	Perhaps I may set out, if I can, both why we believe that the new arrangements in these clauses are appropriate and how they go to the heart of what the Halliday report was trying to do. I shall then turn to the specific questions raised by the noble Viscount, Lord Bridgeman, concerning their potential effect.
	The provisions for custodial sentences of 12 months or more are a central part of the wholesale reform of the sentencing framework. Amendment No. 203A seeks to alter the release provisions for those sentences so that they would not all incur automatic release at the halfway point. Instead, release from sentences of four years or more would take place at the two-thirds point of the sentence; in other words, the amendment would reinstate the present parole thresholds.
	The introduction of sentences of 12 months or more with automatic release at the halfway point builds upon the recommendations of the Halliday report. It provides a new custodial sentence that is intended to be transparent and effective so that all parties who need to do so can better understand the thrust, purpose and impact of sentencing policy.
	Therefore, the automatic release provisions will make the effect of the sentence simpler for the public and practitioners to understand. It should also, most significantly, assist post-release planning, giving the correctional services the necessary information to put in place a coherent package of interventions for the second half of the sentence. The new sentence also provides for requirements to be attached to the whole second half of the sentence. Currently, after a person has been released—for example, at the two-thirds point—any conditions fall away at the point at which he would have reached three-quarters of his sentence.
	The differentiation in release provisions for sentences of over and under four years is justifiable under the current sentencing framework in terms of public protection as potentially dangerous offenders may be serving longer custodial sentences. The Committee will well know why. However, because the Bill introduces sentences for all dangerous sexual and violent offenders, release from which will be dependent upon a recommendation by the Parole Board, the determinate sentence of 12 months or more to which the amendment applies will be available only to non-dangerous offenders.
	Therefore, there is no public protection justification for retaining the differential release provisions suggested by Amendment No. 203A, as, I believe, by inference from what he said, the noble Viscount, Lord Bridgeman, well understood. Because the amendment would also forgo all the benefits associated with the new sentences of 12 months or more, we believe that it is undesirable. In other words, the benefits put in place far better release planning and a far more consistent and longer-term supervision regime during the full second half of the sentence that was originally imposed. And, of course, there is a full right of recall to prison if all or any of those conditions are breached.
	We are making this change because we believe that prison is certainly about punishment and it is sometimes necessarily about retribution, but it must also be about seeking to reduce the risk of reoffending. Therefore, the purpose of the proposal that half the sentence be spent in prison followed by up to a half outside, with conditionality on that half outside, is to try to put in place better planning between the prison and the probation service in an attempt to settle the offender back into society and reduce the likelihood that he will reoffend.
	No one is Panglossian on this issue, assuming that that will automatically happen. But we believe that there is some logic to these arrangements, which involve better planning and impose conditionality of release on licence. For the totality of the second half, which will be longer than the current position for a person released early, the framework will be better than trying to supervise tightly people who have offended and attempting to get them to obey the norms of society and undergo a successful resettlement. I hope that the Committee has borne with me during that digression.
	Amendment No. 200A would make a minor drafting change to the provisions which give the court the power to recommend licence conditions for offenders sentenced to imprisonment for 12 months or more. Clause 229 requires the Secretary of State to have regard to the court's recommendations. However, given the period of time that may have elapsed between sentence and release, it was considered inappropriate for the court to give anything other than a recommendation.
	The kind of conditions that may be recommended are not specified on the face of the Bill but may include educational provisions, requirements to attend programmes or undertake unpaid work, varying according to the needs of the individual offender. Amendment No. 200A does not change the effect of the clause and, I suggest, does not improve the drafting. For those reasons, we do not wish to accept it.
	Amendment No. 204A attempts to enhance public protection by ensuring that offenders serving custodial sentences of four years or more may not be released early on home detention curfew, or HDC, if I may use that abbreviation. We suggest that this amendment is also unnecessary because sufficient safeguards are already in place to ensure that potentially dangerous offenders are not released early on HDC. Those who are given the new sentences for dangerous offenders will not be eligible for HDC and all other offenders must be thoroughly risk-assessed before they may be granted early release.
	The noble Viscount, Lord Bridgeman, gave three examples in which he sought to question whether we genuinely wished to release early in the circumstances that he described. If I heard him correctly, the offender in his first example, who had wounded with intent, had clearly committed a violent offence and therefore the provision would not apply in that situation. In his examples B and C, if I heard him correctly, the offenders had not committed violent or sexual offences. Therefore, in that sense, the noble Viscount is right: he is in play in debate on this issue.
	We consider the measure to be justified in those circumstances—both providing release at the halfway point and also, although it is a limited discretion, making the discretion available to a prison governor to allow HDC if he believes that the circumstances warrant it—for exactly the reasons that I sought to outline previously. Such discretion is not focused essentially on the good of the burglar or the good of the drugs baron. There is an attempt to make it more likely that there will be a supervisory regime for, in the case of the drugs baron, the full second six months of his sentence. That drugs baron, or the person who has offended, will be on licence in the community but subject to recall to prison at any time if he breaches the terms of the licence.
	We believe that that will give a stronger process of control on licence than the current situation and, we hope, will focus the efforts of the probation service on trying to ensure that the person is supervised. We consider it right and proper that the Bill is pitched in this way, consistent with the Halliday recommendations. The aim is for the offender to change his ways and to reduce the risk that he will reoffend. For those reasons—I hope that my explanation has been helpful—we believe that the current measures pitch the issue correctly.

Viscount Bridgeman: On a personal note perhaps I may say how helpful I found the noble Lord's step-daughter on a recent visit to Wandsworth Prison. She made the visit most interesting.
	I turn to the amendments. I am grateful to the Minister for his explanation. However, we feel that it did not address the point that I sought to make, which is of a general reduction in prison sentences. In view of the fact that this is contrary to what was said by the previous Home Secretary, I should like to test the opinion of the House.

Lord Thomas of Gresford: As this is my amendment, perhaps I may reply and the noble Viscount, Lord Bridgeman, can divide the Committee in a moment. The magic and mysterious music murmuring around the Chamber made it very difficult for me to concentrate on the full force of the Minister's reply to my amendment. I shall read what he had to say and decide what I shall do when I have understood it. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 229 agreed to.
	Clause 230 [The Parole Board]:

Lord Filkin: moved Amendment No. 201:
	Page 133, line 6, leave out "Part" and insert "Chapter".

Lord Filkin: Government Amendments Nos. 201 and 202 rectify minor technical inaccuracies with the Parole Board provisions in Part 6. The functions of the Parole Board under Part 12 ought, for consistency with other provisions, to be references to functions under Chapter 6 of that part. I hope that that is clear. That explains why the government amendments are necessary. I beg to move.

Lord Thomas of Gresford: Amendment No. 202A deals with the procedures of the Parole Board. The purpose of the amendment is to omit subsections (5) and (6), which are very important.
	As part of its constitution the Parole Board has a person who has held high judicial office and a psychiatrist. However, in practice, when reviewing licences it is my experience that a number of members who are not identified meet on a daily basis without either a legally or medically-qualified member. It appears to follow a procedure which is opaque, to say the least.
	I declare an interest: I was involved in a case— fortunately it is over so I can refer to it—in which the Secretary of State was subject to judicial review. We discovered that it was impossible to find out what were the rules of the Parole Board in reviewing a licence. There is nothing on the web. So far as we could find out, nothing is published and there is a total lack of transparency.
	The hearings depend upon written reports, which are not disclosed to the person on licence. He has no right to be present or to be represented. In the specific case with which I was concerned a person on licence was arrested and charged with three offences. As a result, the Parole Board revoked his licence and returned him to prison. One of the charges was dropped. He was acquitted on the second charge and the third charge was due to be heard the day after the Parole Board was to determine his appeal against the revocation of his licence.
	Naturally, his solicitor asked the Parole Board to adjourn so that the result of the third offence could be determined. The Parole Board refused that request. The board sat the day before his final hearing and turned him down so that he remained in prison. He was acquitted the following day so all three charges were disposed of. The solicitor went back to the Parole Board and asked it to reconsider its decision, and was told, "We are functus officio. We cannot hear the matter any further". At that point judicial review proceedings were commenced. In due course, before the hearing, although the application for leave was resisted, leave was granted—without, I should say, counsel for the applicant being called upon—and the Home Secretary withdrew.
	Through that experience I discovered that it was impossible to find out how many members of the Parole Board were sitting, who they were, why they took this extraordinary decision to refuse an adjournment and why they refused to rehear the matter when all the matters at issue had been resolved. With that experience in mind I came to look at Clause 230(5) and (6).
	Subsection (5) gives power to the Secretary of State to,
	"make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times".
	It does not give any further detail. Subsection (6) refers to giving the board directions.
	If one turns to Clause 299(2) to see what is the rule-making power, one discovers that this particular subsection is the only exception to the general rule. Clause 299 states that,
	"The power, [to make rules] unless it is a power to make rules under section 230(5), is exercisable by statutory instrument".
	So, for some reason which I do not understand, the rules in Clause 230(5) are not to be made by statutory instrument and therefore are presumably to remain as opaque and as lacking in transparency as they are at present. That is completely unacceptable. I fail to understand how it can be compatible with the convention. Although it is not the lead amendment in this group, I shall beg leave to move my Amendment No. 202A in due course.

Viscount Colville of Culross: Before the Minister replies, perhaps I may add a word to the points made by the noble Lord, Lord Thomas. I am glad to say that it is no longer my job to defend decisions of the Parole Board. However, there is a point on rules and directions on which he has rightly focused.
	The last time this situation arose was after the United Kingdom lost a case at Strasbourg about discretionary life sentences. It was held that it was no longer acceptable for the Home Secretary to decide when such people should be released. Therefore, the Parole Board was turned into a tribunal in order to make that decision in lieu of the Home Secretary. For that purpose there had to be rules. They were the same sort of rules to which the noble Lord, Lord Thomas, referred, but they were eventually made.
	Can the Minister ensure that we do not have a repetition of what happened on that occasion? The Act was to come into force at the beginning of October. The Parole Board asked the Home Office, "Where are the rules?" Nothing happened. We did not ask just out of curiosity. A number of people had to be trained in order to carry out hearings of the kind to which the noble Lord has just referred. They included not just lawyers but also people from a multiplicity of other disciplines. As I said, we asked: "Where are the rules?". But nothing happened.
	So in the end, a group of my colleagues and I sat down and wrote down the rules ourselves. We sent them to the Home Office and said, "This is the best we can do. We will have to train the members of the Parole Board on the basis of these rules because you will not produce any". That is what we did. In the end, some time in the middle of September, the rules were produced and bore a marked similarity to the draft that we sent to the Home Office. I believe they have worked perfectly well since, but they are not a statutory instrument.
	Not only are there more rules here, we have directions. I can tell the Committee that to ensure that such things are properly understood by members of the Parole Board and of panels who have to sit on cases such as those to which the noble Lord, Lord Thomas, has referred, one needs time in advance to train people so that they can consider the implications. It is no use leaving it until the last minute. I ask the noble Lord, Lord Filkin, to ensure that on this occasion there is plenty of lead time. Otherwise it will simply not work. There is now a great deal to build on. There are the discretionary lifer rules—which, I think, would be a useful starting point.
	I should like to draw attention to just one matter. If the Home Secretary is to give directions under subsection (6)(b), having regard to,
	"the desirability of preventing the commission by",
	prisoners,
	"of further offences",
	to what on earth else will he have regard? In taking account of any considerations, he must be considering that desirability—although that is an odd word to find here. I hope that the draftsman will reconsider that.
	However, my main point is that we must not have a repetition of what happened before: all those provisions must be put in place—it would be much better if they were transparent—much sooner than happened last time. I shall forgive the noble Lord, Lord Filkin, if he cannot say anything about the matter today, because I gave notice of it only about 25 minutes ago; but perhaps he can consider it and let me know what is the situation.

Lord Filkin: In responding to extremely interesting speeches to Amendment No. 202A, which was debated in another place and which would remove the Secretary of State's power to make rules and directions concerning the operation of the Parole Board, let me first make some general remarks before turning to more specific points raised by the noble Lord, Lord Thomas of Gresford, and the noble Viscount, Lord Colville of Culross.
	First, on the provision in subsection (5) enabling the Home Secretary to set down directions, as was highlighted during debate in another place the Home Secretary is responsible for criminal justice policy and is accountable to Parliament for all aspects of that policy. He is also responsible for the supervision of all offenders on licence—and, again, is answerable to Parliament in respect of their release arrangements. Because of that, it is entirely proper that he should be able to set down the considerations to be taken into account when determining whether to grant early release.
	Having said that, that does not give the Home Secretary unfettered discretion to set down excessive or unreasonable criteria to be met before release can be granted. All directions must be compliant with Article 6 of the European Convention on Human Rights. The rules have no influence on the determination of applications for early release. Instead, they offer a procedural framework for the Parole Board when sitting in a quasi-judicial capacity in the form of an oral hearing. The Parole Board is always fully consulted in drawing up such rules.
	Of course, that was not the thrust of the issue raised by the noble Lord, Lord Thomas of Gresford. In short—he will bear with me if I slightly oversimplify it—it was that, given that it is operating in a quasi-judicial capacity, one would expect the Parole Board's rules to be known and apparent. He is right on that. I am advised that they are published, but we shall clearly need to consider how they are published and whether they are sufficiently transparent and accessible. If there is a need for greater transparency, we undertake to put that in place.
	Turning to the powerful points made by the noble Viscount, Lord Colville: yes, we will ensure that we will make the rules in time; that training is provided for their implementation; and that we consult the Parole Board. I am told that that is already under way. The noble Viscount is absolutely right: the issues affect people's liberty and they have every right to expect that the processes by which decisions are made are comprehensible and open to account.
	Having made those two general commitments and, aware that I am—how shall I put it?—speaking on another's Bill, it is better that I put in writing to those Members of the Committee and others any further points on those issues that go to the heart of what they have raised, so that we provide as much clarity as possible before Report. At this point, I suggest that the opposition amendments are not pressed.

On Question, amendment agreed to.

Lord Filkin: moved Amendment No. 202:
	Page 133, line 7, leave out "Part" and insert "Chapter".
	On Question, amendment agreed to.

Lord Thomas of Gresford: had given notice of his intention to move Amendment No. 202A:
	Page 133, line 26, leave out subsections (5) and (6).

Lord Thomas of Gresford: I do not propose to repeat what I said earlier. I am most grateful to the noble Viscount, Lord Culville of Culross, for his support and am interested to hear that it is possible to read the rules. I had been under the impression that one reason that the Secretary of State did not proceed further in the case to which I referred was that there was an unwillingness to disclose the rules to the defence. The order that the judge made on the application for leave was that such disclosure should be made on my application.
	We were tempted to press the matter to a Division, but I have heard what the Minister said and await with interest—and within the next two weeks—his further response that will make absolutely clear what is the Government's position on the issue. It is only with that in mind that, for the moment, I shall not move the amendment.

[Amendment No. 202A not moved.]
	Clause 230, as amended, agreed to.
	Schedule 16 agreed to.
	Clauses 231 to 233 agreed to.
	Clause 234 [Persons extradited to the United Kingdom]:

Lord Hodgson of Astley Abbotts: moved Amendment No. 203:
	Page 136, line 13, after "extradition" insert "and surrender"

Lord Hodgson of Astley Abbotts: The amendment concerns Clause 234, which is entitled "Persons extradited to the United Kingdom".
	Some Members of the Committee may be unaware that in parallel with the Bill the Government are pushing through a new Extradition Bill. In its way, it is as long and complex a piece of legislation as the Bill before us: witness the fact that we have spent nine days in Grand Committee discussing its details.
	We have been extremely grateful: first, to the noble Lord, Lord Filkin; and latterly, to the noble Baroness, for the courtesy and attention that they have given to the many amendments tabled. I hope that, in the same spirit, they will forgive me when I say that my noble friend Lady Anelay and I were somewhat horrified to be told that the Government are now to table 158 amendments to the Extradition Bill between now and the end of the week for Report, which begins next Wednesday. If this House is to carry out its proper role of revising and consultation, that is a jolly short period in which to deal with 158 amendments. However, we shall let the matter lie for the moment.
	It is important, in the interests of public confidence and clarity of intention, that the Criminal Justice Bill and the Extradition Bill march in step. The objective of my amendment is to help to achieve that cohesion.
	The Extradition Bill proposes wholesale revision of our extradition laws. It is argued that the present legislative framework gives too many opportunities for the wrongdoer unfairly to delay his extradition. The force of that argument is accepted on all sides of the Committee. But the Extradition Bill makes a further significant step. It divides the countries with which we have extradition arrangements into two categories, each being afforded completely different treatment. Extradition to category 1 territories, which are expected broadly to be EU partner countries, will be governed by a concept wholly new to English law: the European arrest warrant.
	Under the European arrest warrant, individuals who commit one of 32 groups of offences carrying a custodial sentence of more than 12 months are, on the say so of a "judicial authority"—any category 1 territory, not a judicial authority in the United Kingdom—whisked away without any effective protection from the United Kingdom's judicial system. Some of those offences are curiously ill-defined, such as computer-related crime, and others are not crimes in the United Kingdom in any case.
	We can argue about whether that is the right policy to pursue. Indeed, we did so at length in Grand Committee. Concerns were expressed about the absence of habeas corpus in many continental European jurisdictions, and that pursuant to the investigative judicial system prevalent on the Continent, as opposed to the adversarial one in this country, there is a risk that the warrant may be used for fishing expeditions as opposed to the prosecution of crime. Concerns were also expressed about the judicial integrity of some of the countries that will shortly join the European Union.
	We could argue about those issues, but they are not the point of my amendment. The new extradition system for category 1 territories does not correspond in any way to the meaning of the word "extradition" as understood by the man in the street. To him, extradition means a judicial process involving home and overseas judicial authorities, with appropriate checks and balances. Under this proposal there are no checks and balances. But perhaps we should not be surprised, because the European arrest warrant is contained in a Council framework decision in which paragraph 5 of the preamble reads:
	"The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition"—
	"abolishing", my Lords—
	"between member states and replacing it by a system of surrender between judicial authorities".
	A sample of the warrant to be used is included later in the document. Paragraph (i) of the sample warrant refers to:
	"Contact details of the person to contact to make necessary practical arrangements for the surrender".
	The Government propose surrender, not extradition. They should now make that clear in the Criminal Justice Bill. That is why my amendment seeks to insert the words "and surrender" into Clause 234. My amendment is about honesty and clarity with the public. It is proposed in a spirit of helpfulness to the Government. The Prime Minister has said that he now wishes to get away from spin and to focus on reality. Here is a chance for his Government to begin to do so. I beg to move.

Lord Filkin: I thank the noble Lord, Lord Hodgson, for taking us back to old, familiar territory. Several Members of the Committee, including the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, worked on the Extradition Bill, on which there was a good Committee process. I am slightly surprised that we are having a warm-up act today for issues that no doubt—if what the noble Lord advertises is true—will be a substantial process during further consideration of the Bill in your Lordships' House. For those reasons, such a debate would be better saved until that point.
	I shall respond to the central thrust of the noble Lord's argument. Amendment No. 203 seeks to add reference to "surrender procedures" to the provisions concerning the existing legislation on extradition. Although I accept that the Opposition may not be wedded to the exact wording of the amendment, it is worth pointing out that, as drafted, it has an adverse effect on the provisions. Paragraph (a) should be read in conjunction with the definition of "extradition arrangements" at the end of subsection (3). If those extra words were inserted, that would no longer make sense, as "extradition and surrender arrangements" is not a term given meaning to by Section 3 of the Extradition Act 1989.
	That leads us to the wider point that "surrender" is not a term used in legislation in this context. The 1989 Act talks only of "extradition", as does the Extradition Bill currently being considered by Parliament. I recognise the Opposition's contention, which we have discussed previously, that the Extradition Bill, and specifically Part 1, which implements the European arrest warrant, is concerned with surrender rather than extradition.
	I am sure that the noble Lord, Lord Hodgson, has previously pointed to the use of the word "surrender" in the framework decision on the European arrest warrant. However, I repeat the Government's explanation that it is the Extradition Bill and not the framework decision that will govern the law in the UK.
	The dictionary definition of extradition is,
	"to send back an alleged criminal for trial in the country where the alleged crime was committed".
	That is what our existing legislation is about. It is also what the Extradition Bill is about. Extradition will take place, as it does now, only after due judicial process, including extradition under the European arrest warrant.
	It is the existing extradition legislation, as listed in the clause, that governs our procedure now and uses the phrase "extradition arrangements". If, as we hope, the Extradition Bill is passed into law, that legislation will apply, with references to extradition and not surrender. I assure Members of the Committee that, regardless of which Bill receives Royal Assent first, as we hope both will, we will ensure that they are compatible and that any cross-references are correct.
	The clause will apply to extradited prisoners in the future, including those extradited by virtue of the European arrest warrant system, in the same way that it would apply under our existing extradition law.
	Having had the pleasure of debating the issues previously with the noble Lord, Lord Hodgson, I am not so optimistic to think that on this occasion, by some happy coincidence, I will necessarily have persuaded him. But I invite him to think that there will be a better opportunity to discuss the issues when we come to the Extradition Bill, rather than now. For that reason, without asking the noble Lord to spike his future thunder, it might be a good time to debate them then.

Lord Hodgson of Astley Abbotts: I will not, in any case, spike my future thunder. We shall hold that back until Wednesday week and Monday fortnight. The wording is not the point. I agree with the Minister that we are not wedded to the wording; it is the principle of honesty and openness about extradition proposals. I have no doubt that the Government will get their Extradition Bill—I do not know what its form will be, but they will get it. Had the Minister said that he would consider the issue of clarity and introducing the word "surrender" to the clause, I would have been prepared to rely on him to do that and to come back with an amendment later. Since he is not prepared to do that, I wish to test the opinion of the Committee.

On Question, Whether the said amendment (No. 203) shall be agreed to?
	Their Lordships divided: Contents, 87; Not-Contents, 118.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 234 agreed to.
	Clause 235 [Duty to release prisoners]:

Lord Filkin: moved Amendment No. 203ZA:
	Page 136, line 33, leave out from "(1)" to end of line 35 and insert "is subject to section (Restrictions on operation of section 235(1) in relation to intermittent custody prisoners)"
	On Question, amendment agreed to.

Viscount Bridgeman: moved Amendment No. 203A:
	Page 136, line 39, at end insert "(where that sentence is less than four years), or two-thirds of his sentence (in any other case)"

Viscount Bridgeman: For the reasons already given, I beg leave to divide the Committee.

On Question, Whether the said amendment (No. 203A) shall be agreed to?
	Their Lordships divided: Contents, 110; Not-Contents, 109.

Resolved in the affirmative, and amendment agreed to accordingly.
	Clause 235, as amended, agreed to.

Lord Filkin: moved Amendment No. 203AA:
	After Clause 235, insert the following new clause—
	"RESTRICTIONS ON OPERATION OF SECTION 235(1) IN RELATION TO INTERMITTENT CUSTODY PRISONERS
	(1) Where an intermittent custody prisoner returns to custody after being unlawfully at large within the meaning of section 49 of the Prison Act 1952 (c. 52) at any time during the currency of his sentence, section 235(1) does not apply until—
	(a) the relevant time (as defined in subsection (2)), or
	(b) if earlier, the date on which he has served in prison the number of custodial days required by the intermittent custody order.
	(2) In subsection (1)(a) "the relevant time" means—
	(a) in a case where, within the period of 72 hours beginning with the return to custody of the intermittent custody prisoner, the Secretary of State or the responsible officer has applied to the court for the amendment of the intermittent custody order under paragraph 6(1)(b) of Schedule 9, the date on which the application is withdrawn or determined, and
	(b) in any other case, the end of that 72 hour period.
	(3) Section 235(1) does not apply in relation to an intermittent custody prisoner at any time after he has been recalled under section 243, unless after his recall the Board has directed his further release on licence."
	On Question, amendment agreed to.
	Clause 236 [Power to release prisoners on licence before required to do so]:

Viscount Bridgeman: moved Amendment No. 203B:
	Page 137, line 3, at end insert—
	"( ) In exercising his powers under this section the Secretary of State shall have regard to the matters specified in section 135(1)."

Viscount Bridgeman: In speaking to Amendment No. 203B, standing in the names of my noble friends Lady Anelay and Lord Kingsland, I shall speak also to Amendments Nos. 204B and 204C, which are probing amendments. Clause 236 re-enacts, with some amendments, the provisions enacted in the Crime and Disorder Act 1998 that allow the Home Secretary to order the early release of prisoners on home detention curfew before their usual automatic release date. It allows prisoners to be released from custody up to 135 days—more than four months—before the half-way point of their sentences. Thus, if the Bill becomes law, someone sentenced to, for example, two years' imprisonment, might be released on the scheme by the Secretary of State after serving less than eight months in custody. The amendments in this group relate to the operation of that provision within the sentencing framework provided for in the Bill.
	Amendment No. 203B requires the Secretary of State, when exercising his early release powers under Clause 236, to have regard to the purposes of sentencing set out in Clause 135(1), which were considered by the Committee in an earlier debate. The amendment gives the Government the opportunity to state the criteria by which the Secretary of State intends to operate the home detention curfew scheme in the future, particularly in relation to long-term prisoners. Will the Secretary of State bear in mind what is set out in Clause 135 when he makes the decision to release a particular prisoner? In particular, what would happen in a case where the trial judge had passed a deterrent sentence or a long determinant sentence with the aim of protecting the public—for example, on a drug dealer or a serial burglar?
	Would the Secretary of State take the sentencing decision and the aims of the sentence, as set out by the sentencer, into account when deciding whether to release the prisoner early on home detention curfew or would the release be dictated by other factors? I hope that the Minister will comment on the way in which the Government envisage the aims of the sentencing provisions contained in Part 12 interacting with the early release provisions.
	Amendment No. 204B probes the way in which the new sentence of intermittent custody will interact with home detention curfew. Under Clause 176, intermittent custody may be imposed for periods up to 51 weeks. The maximum number of "custodial days"—that is, the actual time spent in prison—is 90 days. During that 90-day period, the prisoner may be released temporarily on licence under Clause 176. It is plain from Clause 236(1)(b), to which Amendment No. 204B relates, that prisoners sentenced to intermittent custody may also be released on the home detention curfew scheme.
	How do the Government intend that the two systems should operate together? What will be the difference in restrictions between release on licence under the intermittent custody sentence and release on the HDC scheme? Will offenders end up spending more time under restriction when they are theoretically "released" on the HDC scheme? Someone serving a sentence of intermittent custody might spend only one or two days per week in prison, while, on home detention curfew, the offender would spend the equivalent of at least three-and-a-half days under curfew each week. I would welcome the Government's view on how the two systems will work in practice.
	Finally, Amendment No. 204C would require the Home Secretary to inform the victim of the offence when the offender is released on home detention curfew. When we debated a previous group of amendments, moved by my noble friend Lady Anelay, she reminded the Committee that the home detention curfew scheme is not mentioned by sentencers when sentence is passed. If the victim is in court, he or she will be left with a false impression of when the offender will be released. Even if HDC is mentioned in the future, the victim will never know precisely when the Secretary of State is going to exercise his power to release any given prisoner.
	The amendment would therefore at least allow the victim to know how long the offender has actually served in prison, rather than entertain false notions based on a "headline" sentence which will never actually be served. I recognise that in some situations—for example, where revenge attacks are possible—it would be inappropriate to inform the victim that an offender had been released on home detention curfew. But surely, in general, victims ought to know that a decision to release an offender early on HDC has been made; a possibility about which they may, through no fault of their own, be entirely unaware. I look forward to the Minister's comments on these amendments. I beg to move.

Lord Carlisle of Bucklow: A few weeks ago the Government had acquired a reputation for excessive spin. In terms of this Bill, it appears to have moved very quickly from excessive spin to excessive stealth. Clause 176 introduces the concept of weekend imprisonment, which I welcome, but without any real announcements at all. In Clauses 235 and 236, effectively, we are doing away with the parole system as we have known it for many years. Instead of everyone serving a sentence of four years or more being eligible for consideration for parole at the half-way stage, under Clause 235 that half-term remission shall be automatic without the Parole Board having any say.
	Amendment No. 203B, moved by my noble friend, applies to Clause 236, under which the Secretary of State is given the power to release at any moment any prisoner serving a fixed term of imprisonment—provided that it is a term of more than eight months—up to 135 days before the half way stage. What is the cause of this sudden change of attitude? The parole system, which stood the test of time for many years, was accepted as a sensible way of releasing an offender back into society. One can only assume that the immediate release of prisoners at the half-way stage of a short sentence, rather than the present four-year sentence, is to help provide space in prisons for additional prisoners which will arise as a result of the clauses that we have had on serious offences, which we have considered, and those on murder, which we will consider shortly.
	However, what concerns me far more is the power now being taken by the Home Secretary to add another 135 days' release, apparently at will, for any prisoner whose sentence is long enough. Looking at the example cited by my noble friend Lord Bridgeman, if a man is serving five years in prison, in future he will come out automatically after two-and-a-half years and, if the Home Secretary so wishes, he can be released 135 days before that halfway point.
	Before he replies, can I humbly remind the Minister that the basic reason why the parole system came into disrepute for a time both in the public eye and in the eye of the judiciary—and was the cause of the subsequent review—was the fact that people given identical sentences by the courts were being released at different times? Conversely, two people serving different sentences could come out on the same day. In any event, the period of the release bore little relationship to the sentence passed.
	Here we shall have a situation where sentence is passed and then the Secretary of State, apparently of his own volition and without being required to give any reason, will be able to say that prisoners A, B and C will serve 18 months of their three-year sentences, while prisoner D is to be let out 135 days earlier. One can only assume again that the power is there is to be used if required for the purpose of helping to reduce overcrowding in prisons and to make room for the additional prisoners that the rest of this Bill will produce.
	Like my noble friend Lord Bridgeman, I should like to hear from the Minister what is the philosophy behind the intention to provide a power for the Secretary of State to release prisoners sentenced by the court 135 days before the time that they would normally be released. The date of release is therefore no longer to be dependent on prisoners serving half of their sentences, but to be dependent on serving half the sentence less anything up to 135 days on the whim of the Home Secretary of the day.

Lord Filkin: As I am sure Members of the Committee know, the home detention curfew scheme—HDC—has been in operation since 1999. It is a process and a system which has been reasonably well tested in practice over that period.
	Amendment No. 203B seeks to require the Secretary of State to take into account the purposes of sentencing, as set out in Clause 135, when considering prisoners for early release under the HDC scheme, while Amendment No. 204B would make those serving intermittent custody sentences ineligible for release under that scheme. Amendment No. 204C seeks to make it a statutory requirement that the Secretary of State must inform victims of crime of his decision to release prisoners on HDC unless there are exceptional reasons for not doing so.
	HDC is a well-developed scheme which primarily concerns the promotion of resettlement, a key element in the purposes of sentencing. The scheme is based on individual risk assessments of prisoners carried out by prison governors. We think that the amendments should be resisted because they would seriously reduce the scope for governors to make reasoned judgments and release suitable prisoners.
	Because the schemes have been in operation for some time, it has been possible to evaluate the judgment of prison governors. The evidence shows that they do appear to be well informed and skilled at making those judgments, when considered as regards the extent to which the HDC scheme is abused, or where there is failure as a consequence.
	All prisoners released on HDC are in any event due to be released into the community within a short time. HDC provides a managed return to society for prisoners in the vital first few months of their release, while providing protection to the public. This applies equally to prisoners serving longer sentences as to those low-risk prisoners whom the courts have determined are suitable for intermittent custody.
	We think there is an equally good reason why it should be tried and used for prisoners who have been serving long sentences. Those sentences will come to an end and it is in the interests of civil society generally to try to maximise the resettlement of such prisoners back into the community in ways that reduce the likelihood of reoffending. That is how HDC bites: it provides a technological means of enforcing movement restrictions according to the risk assessment before there is full release.
	We further think that Amendment No. 204B should be rejected because preventing release under the scheme would have an unfair impact on intermittent custody prisoners. Potentially they could serve longer sentences than custody plus prisoners with the same custodial period.
	There is already statutory provision for the victims of serious crimes to be informed of release arrangements. These apply to those released on HDC as they do to any other method of release. In addition, probation areas have the discretion to provide information to the victims of other crimes as well.
	At the risk of repeating myself, I want to emphasise that HDC is primarily a tool to facilitate resettlement and it is with this in mind that the Secretary of State will make a decision as to eligibility, ruling out those offenders who are judged to be high risk.
	I shall speak in a little more detail about the issue of informing victims of a decision to release prisoners on HDC. A statutory duty already exists in Section 69 of the Criminal Justice and Court Services Act 2000 for the National Probation Service to contact all victims of sexual and violent crimes where the offender was sentenced to imprisonment for 12 months or more. Victims are asked whether they wish to make representations about whether the offender should be subject to certain conditions or requirements upon final release, and whether the victim wishes to receive information about release arrangements.
	Where resources allow, probation areas have the discretion to offer the contact scheme to victims not included in the standard list of offences where it is appropriate. An additional statutory duty contained in the HDC provisions would duplicate the existing provisions, but would also widen the requirement to contact victims of any crime, irrespective of its seriousness.
	I turn now to the relationship between HDC and intermittent custody. HDC operates by kicking in on the days that the offender would otherwise be held in custody. He will therefore be on curfew on those days, while on the other days of the week he will be on his intermittent custody licence, with its conditions. So, in that sense, the person serving the sentence will benefit from being on HDC; otherwise he would have been caught.
	The noble Lord, Lord Carlisle of Bucklow, has asked about these changes to the parole system. The short answer to that is that the Halliday report, which looked into these issues, set out a system of automatic release at the halfway point as part of a process of trying to increase the likelihood that there would be stronger supervision arrangements in place over the second half of the sentence. The most specific example of an immediate benefit is that anyone released at the halfway point will be under the terms of the licence restrictions right throughout the second half of his term. Under current arrangements, after the three-quarter point has been passed, there is no effective control. In particular, for those serving long sentences, one can see that this system strengthens the ability of the Home Secretary to control a person under a form of governance.
	The noble Lord also asked about the 135 days' release. The maximum HDC curfew point is currently 135 days. That came into force on 14th July through an affirmative order, which was discussed in this House and in another place. That does not necessarily mean that it will satisfy the noble Lord, Lord Carlisle, but at least it was considered in this Chamber at that point.
	I hope that those comments on these amendments are helpful to noble Lords. They will put into the record the arguments for, at least, further reflection.

Lord Carlisle of Bucklow: I am grateful for and accept the explanation why the Government have decided to change the system from one in which a prisoner is merely eligible for parole at the half-way stage to one in which he is automatically released from the second half of the sentence.
	I still do not understand—with respect, I do not believe that the Minister answered the question—where the 135 days comes in. Surely that must mean that, as a result of whoever's whim it is, people given the same sentence will find themselves serving different lengths of time in prison.

Lord Filkin: I do not want to give the impression that I am avoiding the question, but I genuinely believe that I would give a better answer if I write to the noble Lord, Lord Carlisle, on that issue setting out the full argumentation. Perhaps he will bear with me in that respect.

Viscount Bridgeman: I am grateful to my noble friend Lord Carlisle of Bucklow for his support and to the Minister for his reply. We shall read Hansard carefully in anticipation of the Minister's letter. We may need to revisit this issue from a slightly different perspective on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Filkin: moved Amendment No. 204:
	Page 137, line 5, leave out "aged 18 or over"

Lord Filkin: In moving the amendment on behalf of my noble friend Lady Scotland of Asthal, I shall speak also to Amendment No. 205. The amendments seek to extend the provisions for early release on home detention curfew to under-18s.
	Under-18s were originally excluded from the scheme because of concern that electronic tagging might not be appropriate for young offenders. Before making a judgment on that question, the Government wished to await the evaluation of the curfew order pilots with electronic monitoring for 10 to 15 year-olds. The pilots have now been evaluated and the disposal has been made available throughout England and Wales.
	In the years since the home detention curfew was introduced for over-18s, the use of electronic monitoring for under 18 year-olds has become increasingly widespread. For example, eligible offenders subject to a detention and training order of eight months or more are released one or two months early on an electronic tag.
	Detention training orders are subject to a separate set of legislative provisions under Section 91, but the Government see no good reason why Section 91 offenders who are under 18 and meet the eligibility criteria should not also be released on an electronic tag. The amendments respond to ongoing litigation and reflect amendments recently made by order to current legislation.
	Amendments Nos. 204CA to 204CF amend the method of calculation of the period spent on home detention curfew, which is tapered according to the length of the sentence. The tapering mechanism as currently drafted is not consistent with the 1991 Act as it significantly reduces the maximum curfew period available for different sentence lengths. For example, under the 1991 Act, a prisoner serving a 12-month sentence would serve three months in custody and three months on home detention curfew. As the clause is currently drafted, such a prisoner would serve four-and-a-half months in custody and one-and-a-half months on curfew. The amendments will correct this position and provide curfew periods consistent with the maximum curfew periods currently achieved through the Criminal Justice Act 1991.
	Amendment No. 204MA prevents prisoners who have been recalled to prison for failing to comply with the curfew condition from being re-released on HDC during the current sentence. It is not appropriate for prisoners who have breached their curfew to be immediately eligible for consideration for release on HDC for reasons that I hope are self-evident. The amendment prevents this possibility. I beg to move.

On Question, amendment agreed to.
	[Amendments Nos. 204A to 204C not moved.]

Lord Filkin: moved Amendments Nos. 204CA to 204CF:
	Page 137, line 13, leave out "8" and insert "6".
	Page 137, line 15, leave out "6" and insert "4".
	Page 137, line 16, leave out "three-quarters" and insert "one-half".
	Page 137, line 18, leave out "56" and insert "42".
	Page 137, line 20, leave out "42" and insert "28".
	Page 137, line 21, leave out "three-quarters" and insert "one-half".
	On Question, amendments agreed to.

Viscount Bridgeman: moved Amendment No. 204D:
	Page 137, line 23, at end insert—
	"( ) the court has recommended to the Secretary of State that subsection (1) should not apply in the interests of justice,"

Viscount Bridgeman: In moving Amendment No. 204D, I shall speak also to Amendments Nos. 204E to 204M and to Amendment No. 204N, all of which are tabled in the names of my noble friends Lady Anelay and Lord Kingsland.
	The amendments are tabled in order to probe the precise scope of the expanded home detention curfew provisions contained in Clause 236. A number of categories of prisoner are already excluded by statute from the HDC scheme, such as those liable to deportation and registered sex offenders. The amendments seek to add to those excluded categories and to ascertain the arrangements by which a variety of types of prisoner will be released on the modified HDC scheme provided for in the Bill.
	Amendment No. 204D would allow the court to specify when sentencing that a prisoner should not be released early on the HDC scheme. In the case of those offenders from whom the court considers the public need protecting but who might otherwise qualify for the HDC scheme, would not this enable victims and the public to feel sure that an offender would not be released up to four months earlier than the standard release date? This might be a particularly important safeguard in the case of those serving very long sentences indeed, to which the next three amendments in the group relate.
	Amendments Nos. 204E, 204F and 204G would exclude from the HDC scheme those offenders sentenced to terms of at least seven, 10 or 14 years respectively. Such offenders are presently excluded from the HDC arrangements by virtue of the fact that the scheme applies only to short-term prisoners serving less than four years. However, they will be eligible for release on HDC if the Bill is enacted because the restriction of the scheme to short-term prisoners is not replicated in Clause 236.
	The amendments simply pose the question of whether all prisoners serving determinate sentences—perhaps those serving sentences of 14 years or more for very serious offences such as drug trafficking, armed robbery, manslaughter or even terrorist crimes—ought to be eligible for early extra release on the HDC scheme. Can the Minister say whether Clause 236 will allow those already serving such sentences—of whom there must be many in Her Majesty's prisons—to be released early on HDC, or will it apply only to those sentenced after commencement?
	Does the Home Secretary intend to operate any separate policy in relation to those sentenced to long terms of imprisonment or who have committed the most serious offences, or will the same eligibility criteria apply regardless of whether the sentence is 12 months or 12 years?
	As regards Amendments Nos. 204H, 204J and 204K, can the Minister clarify whether any special policy will be put in place in respect of those who have been sent to prison after committing an offence against a child or a drug trafficking offence, particularly if they have been sentenced to long terms of imprisonment for very serious crimes?
	Will he also comment on the scope for the early release of those who have been convicted of the specified violent or sexual offences referred to in Clause 215 but who have been sentenced to ordinary determinate terms of imprisonment rather than detention for public protection or extended sentences? What criteria will govern the release of such prisoners, who may have committed very serious crimes?
	Amendment No. 204L would prevent the release of a prisoner on HDC if the Secretary of State's view was that it was more likely than not that the prisoner would re-offend while on HDC. I sincerely hope that this is indeed the position at the moment in relation to those who are risk assessed after being released early on HDC and that the Minister can confirm that the amendment is reflected in the Secretary of State's policy.
	Will the Minister also comment on the risk assessment for those serving short prison sentences who are released on the presumptive HDC scheme introduced last year who, as I understand it, do not have to go through precisely the same sort of checking as those who are released on the standard scheme? Will the Minister, in responding to the amendment, also comment on the risk assessment process more generally, and how successful it has been in preventing the release of those who might reoffend while on HDC?
	I commend Amendments Nos. 204M and 204N to the Minister as alternatives to government Amendment No. 204MA, which was debated in the previous group. Amendment No. 204N would prevent the release of a prisoner who had on any occasion—whether during his present sentence or a previous one—been released on the home detention curfew scheme. While I welcome the Government's decision to include Amendment No. 204MA, I simply ask the Minister why the Government think that someone who has breached the licence conditions of a previous early release on HDC so drastically that he or she has been recalled to prison is a fit person to benefit from the scheme a second time.
	Amendment No. 204M is on a similar point. Why should a person who has previously been released early on HDC and has committed a further serious offence, justifying a new prison sentence, be released early on HDC a second time? I should be grateful for clarification of the Government's position on these points. I beg to move.

Viscount Colville of Culross: I do not know what the noble Lord, Lord Filkin, will do about these amendments, but I should be very grateful to be enlightened either by him or the noble Viscount, Lord Bridgeman, on Amendment No. 204L. This seems to be another of these occasions on which we are enacting power for the Secretary of State, without advice from anybody, to refuse to give somebody his liberty. Presumably he will have to give reasons for this. Is this consistent with the European Convention on Human Rights and therefore the Human Rights Act? I seriously doubt whether it is but, at any rate, it certainly deserves consideration.

Lord Filkin: I should like to read some general principles into the record and turn to the specifics later on.
	Amendment No. 204L requires the Secretary of State to exclude prisoners who are likely to commit an offence during the curfew period from release under the scheme. The well established risk assessment process carried out by prison staff already takes into account the likelihood of reoffending. In fact, it is, self-evidently, one of the central focuses for making that judgment. Governors do not, nor should they, release prisoners if they consider that there is a significant risk that the prisoner will reoffend during the curfew period. It is impossible for the risk assessment process to guarantee a successful curfew, but governors have proved themselves to be effective assessors of risk. The vast majority of curfewees—if I can use that expression—complete the curfew period without any problems at all. Less than 3 per cent of curfewees are reported to reoffend during the curfew period.
	The noble Viscount, Lord Bridgeman, also asked the question the other way round. In a sense it was a comment on the risk assessment and on preventing the early release of people who should not be released early. It is almost impossible to know what people who had not been released might have done if they had been released. I am not being flippant—all we know is what happened to those who were released. Again, one would expect that governors, mindful of their duties, would be prudent and cautious on early release as the statistics I have given bear out.
	Amendment No. 204M seeks to prevent prisoners previously released on HDC being released on the scheme at any time in the future. The amendment would limit the scheme to prisoners who had never previously been released on HDC, even where they had completed the curfew period successfully. We consider that the risk assessment process adequately takes account of the previous criminal history of prisoners and persistent offenders, and that it would be unduly harsh to limit eligibility to first-time offenders.
	Amendment No. 204D seeks to establish a right for the sentencing court to prohibit an offender's future release on HDC,
	"in the interests of justice".
	The amendment would mean that sentencers could direct, at the point of sentence, that an offender must not be released on HDC. Suitability for HDC might therefore be determined months or even years in advance of a prisoner's release date and would remove the discretion of the Secretary of State—or, more specifically, the governor—in the decision-making process.
	HDC assessments are purposely undertaken near to the potential date for release so that the most relevant and up-to-date information is taken into account. That feels right. For example, behaviour in custody, success in addressing offending behaviour and domestic circumstances are all matters which are most appropriately considered near to the release date. In some cases it is only near to the release date that they can be considered. The seriousness of the original offence and the previous criminal record are also taken into account and should be taken into account.
	Amendments Nos. 204E, 204F and 204G seek to limit the maximum eligible sentence length to 14, 10 and seven years respectively. The amendments would, in varying degrees, limit access to early release for longer sentence prisoners. This would reduce the resettlement opportunities for such prisoners and would have a detrimental impact on prison population projections.
	Resettlement opportunities are the central focus. HDC is intended to make resettlement more likely. People who are serving long sentences will come out at some point in time—that is a fact. The issue is how to maximise the success of that. The discretion is with the governors; they have to make the judgment. It is not a question of whether to impose a custodial sentence—that has already been decided by the court—but whether to grant abatement. It is wise to give them that discretion across the full span of offences. No doubt they will be even more mindful of people who are serving longer sentences and have had repeated criminal convictions when they exercise that judgment.
	Amendments Nos. 204H, 204J and 204K seek to exclude broad categories of offenders on the basis of offence committed rather than the risk presented at the point of release. For the same reasons, we think that the assessment of the risk of reoffending at the point of release is the right point at which to make the decision. It is good that it is not unduly fettered.
	Amendment No. 204H seeks to exclude prisoners who have committed an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000. But many of the offences listed in that part are sexual offences which already render prisoners statutorily ineligible in these circumstances. Offences involving child cruelty fall under the administrative presumption against release, which was introduced on 14th July 2003. So I hope that gives strong comfort to the noble Viscount, Lord Bridgeman.
	Amendment No. 204J seeks to exclude prisoners serving sentences for offences involving the production and dealing in class A drugs. Amendment No. 204K seeks to exclude prisoners serving sentences for violent and sexual offences listed in Schedule 12. This would exclude those not given extended sentences for these offences.
	Prisoners subject to the registration requirements of the Sex Offenders Act 1997 are already excluded from HDC. Other sexual offenders and some violent offenders are subject to the administrative presumption against release.
	Amendment No. 204N—the last amendment in this group, noble Lords will be relieved to hear—seeks to exclude prisoners who have previously been released on HDC and have been recalled for breaching the curfew conditions.
	The reason the Bill removes the exclusions set out in the 1991 Act is that it was considered that previous HDC breaches, which may have taken place a number of years ago, would unnecessarily limit access to HDC for otherwise suitable prisoners. One trusts that prison governors are not foolish. For someone who has previously breached an HDC, the burden of the governor's consideration as to whether that person is likely to breach in the future must be a material consideration. But we do not think there should be an automatic exclusion because there could be circumstances in which a governor quite wisely decides there has been a change of behaviour sufficient to justify the release.
	I was also asked whether the amendments are compatible with the ECHR and our own Human Rights Act. They are indeed, although if it would be helpful I would be delighted to write in more detail to the noble Viscount, Lord Colville, on that point, with copies to those on the Opposition Benches.
	I was asked about the risk assessment process. Governors consider a range of issues before deciding to grant release, such as current offences, previous criminal history, behaviour in custody and success in addressing offending behaviour. They also judge the risk of breaking the curfew or of reoffending during the curfew period. Each individual case is different, and the risk assessments and process reflect that. Those convicted of drug dealing offences are not considered for release under the presumptive scheme, and governors may refuse release if there are compelling reasons for doing so.
	I fear that I am in danger of boring the Committee. Let me conclude by saying that 90 per cent of offenders have successfully completed HDC without any problems, and less than 2 per cent have been reported as reoffending on HDC. I hope that clarification is helpful.

Viscount Colville of Culross: I am grateful to the Minister for saying that he will write to me. I am interested only in the point in relation to Amendment No. 204L, because it is different from the others. If he could tell me about that, it would be quite enough.

Lord Filkin: I was threatening not a very long letter, but a focused letter on that specific point.

Viscount Bridgeman: I am grateful to the Minister for undertaking to write to the noble Viscount, Lord Colville, as the question was addressed jointly to me. I am also grateful for a comprehensive reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 204E to 204M not moved.]

Baroness Scotland of Asthal: moved Amendment No. 204MA:
	Page 137, line 34, at end insert—
	"(ff) the prisoner has been released on licence under this section during the currency of the sentence, and has been recalled to prison under section 244(1)(a),"
	On Question, amendment agreed to.
	[Amendment No. 204N not moved.]

Baroness Scotland of Asthal: moved Amendment No. 205:
	Page 138, line 11, leave out paragraph (a).
	On Question, amendment agreed to.
	Clause 236, as amended, agreed to.
	Clauses 237 to 239 agreed to.
	Clause 240 [Licence conditions]:

Baroness Scotland of Asthal: moved Amendment Nos. 205A to 208:
	Page 139, line 37, after "(6)" insert "and section (Licence conditions on re-release of prisoner serving sentence of less than 12 months)"
	Page 140, line 1, after "include" insert—
	"(i)" Page 140, line 5, at end insert "and
	(ii) such other conditions of a kind prescribed for the purposes of this paragraph as the Secretary of State may for the time being consider to be necessary for the protection of the public and specify in the licence." Page 140, line 31, leave out from "licence" to end of line 32 and insert "at any time while a curfew condition required by section 242 is in force"
	Page 140, line 36, after "subsection" insert "(2)(b)(ii) or"
	On Question, amendments agreed to.
	Clause 240, as amended, agreed to.

Baroness Scotland of Asthal: moved Amendment No. 208A:
	After Clause 240, insert the following new clause—
	"LICENCE CONDITIONS ON RE-RELEASE OF PRISONER SERVING SENTENCE OF LESS THAN 12 MONTHS
	(1) In relation to any licence under this Chapter which is granted to a prisoner serving one or more sentences of imprisonment of less than twelve months and no sentence of twelve months or more on his release in pursuance of a decision of the Board under section 243 or 245, subsections (2) and (3) apply instead of section 240(2).
	(2) The licence—
	(a) must include the standard conditions, and
	(b) may include—
	(i) any condition authorised by section 62 or 64 of the Criminal Justice and Court Services Act 2000 (c. 43), and
	(ii) such other conditions of a kind prescribed by the Secretary of State for the purposes of section 240(4)(b)(ii) as the Secretary of State may for the time being specify in the licence.
	(3) In exercising his powers under subsection (2)(b)(ii), the Secretary of State must have regard to the terms of the relevant court order.
	(4) In this section "the standard conditions" has the same meaning as in section 240."
	On Question, amendment agreed to.
	Clauses 241 and 242 agreed to.
	Clause 243 [Recall of prisoners while on licence]:

Baroness Scotland of Asthal: moved Amendment No. 208B:
	Page 141, line 42, at end insert—
	"(4A) In the case of an intermittent custody prisoner who has not yet served in prison the number of custodial days specified in the intermittent custody order, any recommendation by the Board as to immediate release on licence is to be a recommendation as to his release on licence until the end of one of the licence periods specified by virtue of section 176(1)(b) in the intermittent custody order."
	On Question, amendment agreed to.
	Clause 243, as amended, agreed to.
	Clauses 244 to 252 agreed to.
	Clause 253 [Interpretation of Chapter 6]:

Baroness Scotland of Asthal: moved Amendment No. 208C:
	Page 146, line 36, at end insert—
	""intermittent custody prisoner" means a prisoner serving a sentence of imprisonment to which an intermittent custody order relates;"
	On Question, amendment agreed to.
	Clause 253, as amended, agreed to.

Lord Lloyd of Berwick: moved Amendment No. 209:
	Before Clause 254, insert the following new clause—
	"AMENDMENT TO MURDER (ABOLITION OF DEATH PENALTY) ACT 1965
	In section 1(1) of the Murder (Abolition of Death Penalty) Act 1965 (c. 71) (abolition of death penalty for murder), for the word "sentenced" there is substituted "liable"."

Lord Lloyd of Berwick: We come to a very important and, I suspect, very contentious part of the Bill.
	Nearly 40 years ago, the sentence of capital punishment was abolished and a sentence of imprisonment for life was substituted. Nearly 15 years ago, a Select Committee of this House was set up to consider the definition of the crime of murder and, in particular, whether the sentence of life imprisonment should be mandatory or discretionary. The chairman of that Select Committee was Lord Nathan, whom I believe to have been a much respected Member of the House. Many distinguished Members of the House sat on the committee, including my noble and learned friend Lord Ackner, and the noble Lords, Lord Windlesham, Lord Harris, and Lord Campbell of Alloway.
	The committee heard a great deal of evidence about how the mandatory sentence had worked in practice. The evidence came from judges, academics and from many others, including the noble Viscount, Lord Colville of Culross. With only one dissenting voice, the committee reached the conclusion that the sentence for murder should not be mandatory.
	The reasoning was simple. Everything that was intended to be achieved in 1965 by making the life sentence mandatory could be equally well achieved, and perhaps better, by making it discretionary, so that the sentence of life imprisonment could be reserved for the really serious cases—that is to say, cases that on any view deserved a life sentence. In that way, murder would be brought into line with other very serious crimes that carry a maximum sentence of life imprisonment.
	The amendment would give belated effect to the recommendation of the Nathan committee. The report was debated in the late 1980s, and almost everyone who spoke in the debate spoke in favour of the committee's recommendations. If the amendment were passed, the rest of Chapter 7 of Part 12 of the Bill, including Schedule 17, would fall to the ground.
	The argument in favour of making the life sentence mandatory is, of course, that murder is a uniquely serious crime. That is the argument which is always advanced but I hope to persuade the Committee that that is not so. Even if the crime of murder were confined to the deliberate taking of another life—which it is not—the seriousness of the crime would still vary greatly from one case to another. No one would argue, for example, that a life sentence is always appropriate in a case which is in truth a case of what is often called "mercy killing".
	The Committee will perhaps remember the case of the Maw sisters in the 1980s on which the Nathan Committee commented. They were found guilty of killing their father, and there was no question but that the killing was deliberate. However, the sentence of three years which was imposed on the Maw sisters was generally regarded as being too heavy, not too light, because of the circumstances of the particular case. So deliberate killing of another does not of itself make the crime of murder uniquely serious.
	However, the crime of murder is not confined to the deliberate taking of another life. The intention to cause the victim serious harm—as all the lawyers present will know only too well—is enough. If the mandatory sentence for murder were abolished—which is the purpose of this amendment—judges could then distinguish between an intention to kill and an intention to cause serious harm falling short of an intention to kill but which happens to result in death. They could then make the punishment fit the particular crime of murder instead of imposing the same punishment on all. That is why the judges who gave evidence to the Nathan Committee, and others, were overwhelmingly opposed to the mandatory sentence of life imprisonment for murder.
	Let me give an example from my own experience because I always find that one example carries more weight than any amount of theoretical argument. Members of the Committee may remember the Clegg case. Clegg was a private soldier in the Parachute Regiment serving in Northern Ireland. He tried to stop a car after it had been driven through a checkpoint. He fired after the car had passed him and killed one of the passengers who happened to be a joyrider. On the facts as found by the noble and learned Lord, Lord Hutton, then Lord Chief Justice of Northern Ireland, Clegg was found guilty of murder. That verdict was inevitable even though Clegg had acted in the course of his duty.
	Clegg then appealed to the House of Lords and his conviction was upheld—a decision of which I was a party. It was not open to us to reduce the conviction to one of manslaughter so there was, as the law now stands and stood then, no alternative to a sentence of imprisonment for life. Fortunately, there was a rehearing on the facts and on that rehearing the conviction was quashed. So in that sense and in that sense only the story could be said to have had a happy ending.
	But the point of referring to the case is simply this: to my mind it was quite wrong that Clegg should have had to be sentenced to imprisonment for life for a crime which would otherwise have carried a short, perhaps very short, sentence of imprisonment. To have to impose a life sentence in such a case makes a mockery of the sentencing process, and may even paradoxically reduce the deterrent effect of a true life sentence, as the Nathan Committee pointed out. It is the very opposite of honesty in sentencing to which I believe this Government are committed.
	So let us not hear any more about murder being a uniquely serious crime. Some murders are, of course, as serious as any crime could be but others emphatically are not. To have to impose the same nominal sentence for all simply makes no sense. I hope that when she replies the Minister will not rely on that old, old cliche that to abolish the mandatory sentence for murder would send out the wrong signal. If she says that, I should be very interested to know to whom the signal is intended to be sent and by whom it is intended to be received. I beg to move.

Lord Ackner: I am a co-proposer of the amendment and I should like to add a little to what has been said. It is often thought that the mandatory life sentence was a compromise which induced the legislature to drop the mandatory death sentence. It is often thought that to alter that would be going back on that compromise. Those who say that are wrong about what happened.
	I shall read from the report of the Nathan Committee at page 32. It stated:
	"During the debates on the Murder (Abolition of Death Penalty) Bill in 1965, there was a strong body of opinion in Parliament that the sentence for murder should be discretionary. The opposition to the mandatory sentence was led by the then Lord Chief Justice, Lord Parker of Waddington, who moved an amendment at the Committee Stage to make the sentence discretionary. His amendment was accepted by 80 votes to 78. Eleven Peers who held high judicial office voted. All but one were in favour of the amendment. The exception was the Lord Chancellor, Lord Gardiner, whose opposition was in accordance with Government policy. In the face of Government opposition and disquiet among the sponsors of the Bill, Lord Parker proposed alternative amendments on Report which maintained the mandatory life sentence, but gave the court power to recommend a minimum period of time which, in its view, should be served. These amendments were accepted without a division in either House".
	There is this constant reference to murder being a uniquely heinous crime. Lord Hailsham, a former Lord Chancellor, dealt with that point in his speech in R v Howe in the House of Lords in 1987. He said:
	"Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so called Moors murders to the almost venial, if objectively immoral, 'mercy killing' of a beloved partner".
	The report continues:
	"Some cases of murder will be less grave than some cases of attempted murder, or of manslaughter, or of causing grievous bodily harm with intent. The organisation JUSTICE has examined in some detail over 200 cases over the last 30 years and concluded that the circumstances giving rise to murder vary infinitely so that the relative heinousness of the crime covers the whole spectrum from the tragic mercy killing to the most sadistic type of sex murder of young children".
	The noble and learned Lord who was then Lord Chief Justice, who gave evidence before the committee, made the point—it is very important—that, in discretionary life cases, the seriousness of the offence is often greater. The report recorded that:
	"The opinion of the Lord Chief Justice is that the problem of dangerousness arises in a more acute form in relation to offences other than murder. Rapists and arsonists may be much more likely to commit the same sort of offences than a murderer; and they are dealt with by passing a life sentence or a sentence which is somewhat longer than would have been necessary without the element of risk. The abolition of the mandatory sentence would involve only a slightly increased risk.
	In so far as a mandatory life sentence is justified by the special problems of estimating the chances of future violence by those who have killed once, the existence of the special defences such as diminished responsibility and provocation"—
	as Members of the Committee know, they reduce murder to manslaughter—
	"introduced in earlier times for different purposes, undermines the logic of the sentence by excepting from its scope just those offenders who are most likely to prove dangerous for the future".
	The Home Secretary has now lost his power to decide how long a murderer should remain in prison. That happened as a result of a decision of the legal committee of this House, which advised that it would be contrary to European jurisprudence for a politician to have any say in sentencing. Subsequently, a decision of the European Court of Human Rights said just that. What we seek—that the sentence on murder should be discretionary—will no longer take away from the Home Secretary something that he possesses. That is gone already, which was really the political justification for maintaining that the sentence be mandatory, with discretion not entering into it.
	I therefore submit that it is quite out of date to hang on to that anomaly. It is wrong from the point of view of evaluating the nature of the crime. A consistent approach—leaving the judges to decide the appropriate sentence—should be allowed to stay. I make it perfectly clear, as did the report, that there would be very lengthy sentences in the really serious cases and, in some cases, there would be whole-life sentences so that the murderers never came out of prison. I support the amendment.

Lord Thomas of Gresford: The noble Baroness, Lady Kennedy of The Shaws, talked earlier about the duty of a government to lead and educate public opinion. However, on the question of a mandatory life sentence no government have yet had the guts to lead and educate the public on the realities of murder cases, about which the noble and learned Lords have spoken so movingly.
	Those of us who regularly practise in the courts know only too well that there are great differences between cases. For example, the noble and learned Lord, Lord Lloyd of Berwick, referred to the case of Clegg, a soldier. As he spoke, my mind was taken back to a case where I was on one side and Lord Williams of Mostyn—I have been thinking about him very much recently, for obvious reasons—was on the other. That involved the miners during the miners' strike who dropped a concrete block and killed a taxi driver in a taxi taking a worker to work. In all sorts of cases, the degree of culpability differs. Judges are well used to distinguishing a killing caused through depravity from one caused through weakness or a domestic quarrel that is over in a flash, and so on.
	The noble and learned Lord, Lord Ackner, referred to the fact that the mandatory life sentence distorts the law. The law of provocation is a highly difficult and complex area that always causes problems. It causes many trials to take place where the facts are gone into at length over many days, simply to establish whether the jury is satisfied that the defendant was provoked into what he was doing and that the provocation was such that a reasonable man would have been so provoked, and therefore the crime is reduced from murder to manslaughter. The problems that have arisen with the law of provocation, particularly with people who suffer physical or mental disability, distort the law entirely.
	Again, issues are discussed at length about the intention of a particular person. We have no distinction in this country between an intent to kill and one to cause some really serious injury. Those distinctions exist in other jurisdictions, where differences of sentence can then be passed.
	The Liberal Democrats have for many years strongly supported the abolition of the mandatory life sentence. We are wholly behind the amendment.

Lord Clinton-Davis: I was much moved by the speeches of the noble and learned Lords who spoke to the amendment. They made a very powerful case. I do not think that I have considered carefully the consequences of the provision. The noble and learned Lord, Lord Lloyd, said that Chapter 7 would be abrogated, as I understand it. I had not realised—perhaps it is my fault—that that would be the case.
	We are considering a vital amendment at 20 minutes to eight. The whole Committee should consider carefully what has been said. I therefore ask the noble and learned Lords if they would be prepared at this late stage to come back to the issue on Report. I ask that because they have raised a most important issue. I do not know how many people have spoken tonight—maybe three or four—but I am not sure that the issues on which they have embarked have been carefully considered. We need to do that, because what has been said is of immense importance to the credibility of this place.
	I therefore ask the noble and learned Lords whether they are prepared to do that, because we should not go into the Lobby lightly about this issue. What has been said today should be considered by my noble and learned friends very carefully, but I am sure that the consequences are of enormous importance. For that reason, I beg the noble and learned Lords to say today that they are prepared to return to the matter on Report.

Lord Renton: I am sure that the noble Lord who has just spoken is quite right in saying that this is a very important matter and that the final decision should be taken by your Lordships not tonight, but on Report. I should confess that I voted and spoke against the 1965 Act. That may be because I had already done what very few living people have done: I prosecuted and defended in a number of murder cases as long ago as 1938 and 1939, because I was the so-called circuit junior of the south-eastern circuit. Also, during my four and a half years as a Home Office Minister, where the late Lord Butler of Saffron Walden was the Home Secretary throughout, the death penalty was still in existence. He had to deal with those matters on his own. He bravely never tried to pass the buck to any of us or to any of his civil servants. He took the responsibility himself of deciding whether the death penalty should be imposed.
	Those of us who were against the abolition of the death penalty were worried because we felt it almost certain that the number of murders would increase, and I am sorry to say that they have increased. Although they fluctuate a bit, they are now of a numerical character that never existed when there was a death penalty. However we must take things as we find them and not as they are. There is no question of the death penalty being restored. As has been so lucidly articulated by the noble and learned Lord, Lord Lloyd of Berwick, supported by the noble and learned Lord, Lord Ackner, the question is whether the Home Secretary should have the discretion to decide the lengths of the time to be spent in prison.
	I must confess that I have, I hope, learnt to live with the times, in spite of the views which I used to hold and which I have already described. There is a lot to be said for what the noble and learned Lord has described. I will be interested to hear what the noble Baroness, Lady Scotland of Asthal, has to say about that, but I am sure that both Houses of Parliament—and the Bill provides the opportunity—should now apply their minds to whether the Home Office should have discretion, as the noble Lord, Lord Thomas of Gresford, also suggested, or whether the rather rigid results should be prolonged.
	That is a very important matter. I hope that we do not decide on it tonight. I hope that it will come up again on Report as the noble Lord has suggested.

Lord Borrie: It is appropriate that in 2003, nearly 40 years after the 1965 Act abolished capital punishment, the matter of a mandatory life sentence should be questioned. We must all be grateful to the noble and learned Lords for introducing their amendment. They have both made powerful and eloquent speeches. The most powerful part of the speech of the noble and learned Lord, Lord Lloyd, was his indicating how false, how dishonest, how unreal and how unhelpful to the public is the mandatory life sentence, which in so many circumstances does not mean what it says and is not intended by the judge to mean what he has to say. That is an unreality with which we have lived over all these years, for reasons which we can partially understand from the history that the noble and learned Lord, Lord Ackner, has described. The reasons are political in part, such as the need to reassure the public, many of whom were not happy about the abolition of capital punishment. Surely, therefore, it is timely.
	I support my noble friend Lord Clinton-Davis in asking that the proponents of the amendment do not push it tonight. If it were carried, there would be some unfortunate outcomes, including our then being unable to discuss the controversial detail, which deserves to be discussed, of the principles set out in Schedule 17 of what different types of murder justify different types of minimum starting points for sentencing and whether someone other than the judge—namely, Parliament—should become involved with detail of this sort. That is worthy of discussion, these many years on since 1965, as well as the points that have been so usefully and helpfully raised by the noble and learned Lords.

Baroness Scotland of Asthal: I add my voice to those who commend both the noble and learned Lords, Lord Lloyd and Lord Ackner, on their erudite presentation of the matter, but I hope that they will forgive me for saying that in the comments which they made with such passion they have been reciting a view that has been recited repeatedly since 1965. We therefore have a dividing line on which way the argument falls.
	If I repeat some of the issues that we have raised in the past, I should make it clear that I do so because they do not lose their poignancy or their importance. In discussing the issue, it is important for all of us to bear in mind the victims who are subject to those offences and their families. It is true—and a number of noble Lords will have heard it themselves—that for those families who have lost a loved one, life really does mean life, because the people whom they love will never return.
	Perhaps I may with some temerity trespass on those issues which are perceived to be mercy killings when a member of a family makes a decision, perhaps with the victim, to terminate the life of that loved one and to put him "out of his misery". Members of the Committee will know that even such killings do not necessarily meet with universal approval within the family of the victim. There can be great pain, great resentment and great anger. It would be to fail to recognise the delicacy of these situations if we did not put the issue against that back-cloth.
	Members of the Committee will also know that when talking to the families of such victims there is a feeling bordering on rage as regards the failure to recognise that the life which has been taken away should be mirrored by a life sentence for the perpetrator, albeit that there is an understanding that the whole-life tariff may not necessarily be served in custody but in part on licence in the community. I was pleased to note in the elegant remarks of the noble and learned Lords, Lord Lloyd and Lord Ackner, a recognition that, historically at least, murder has occupied a special place in our criminal law. I understand what the noble Lord, Lord Thomas of Gresford, says: that many would have wished that not to be the case.
	The special status of the offence arises not only from the tragedy of loss of life, but also from the murderer's intention that the victim should die, or at least should suffer serious harm. Those characteristics of the offence obtain whatever the circumstances in which it occurs. The sentence of mandatory life imprisonment reflects this unique nature of the offence and the fact that the public rightly regard it as a particularly abhorrent crime. It is a consolation to relatives in such cases that society marks its disapproval of the crime of intentionally depriving another of his life by imposing a life sentence.
	Since 1965, Parliament has on numerous occasions discussed these issues and had an opportunity to decide whether to abolish the mandatory life sentence for murder. There has not been any occasion when the majority of both Houses has been in favour of doing so.
	There is a clear distinction between the mandatory life sentence for murder by adults and discretionary life sentences. The former is characterised as a mandatory sentence automatically imposed by law as a punishment reflecting the unique gravity of the offence. The discretionary life sentences, on the other hand, are justified primarily by considerations of the offender's character, mental state or age, and his resulting dangerousness.
	This distinction between the mandatory and discretionary sentences has been recognised and confirmed in a number of human rights cases. Most recently, appeals in the case of Lichniak & Pyrah found that the mandatory life sentence was compatible with the convention rights. The court also noted in its judgment that,
	"section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965 represents the settled will of Parliament",
	and,
	"it may be accepted that the mandatory life penalty for murder has a denunciatory value, expressing society's view of a crime which has long been regarded with peculiar abhorrence".
	If I may respectfully say so, that Judicial Committee of your Lordships' House had a particularly strong court. Sitting in the House, determining this matter, were the noble and learned Lords, Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry. Members of the Committee will know that that was a strong court indeed. They spoke and what they said chimed very much with what the country seems to desire.
	As your Lordships will be aware, offenders are not lightly prosecuted for murder. There are a number of partial defences to murder—such as diminished responsibility or provocation—which result in commuting the charge to one of manslaughter. This ensures that those who are convicted of murder will have committed a uniquely serious crime. This ensures, too, that those who are convicted of murder will have committed this crime in circumstances where the court feels it was justified to so mark it. The Law Commission is currently examining the operation of partial defences to murder—taking up the point made by the noble Lord, Lord Thomas of Gresford—provocation and diminished responsibility, including the proposed introduction of a partial defence of self-defence where an excessive amount of force was used. The intention is to complete the review early next year. I therefore understand what the noble and learned Lord, Lord Ackner, said about those issues.
	I agree, too, that there is a great variety in the nature and facts which give rise to murder. The framework which we have set in place, which we will discuss later, enables a court to make that distinction when differentiating between those who may fall into the category such as the noble and learned Lord, Lord Lloyd, mentioned in terms of mercy killings, and those at the other end, who the noble and learned Lord, Lord Ackner, acknowledged may be subject to a whole-life tariff. That distinction is there to be seen.
	The death penalty for murder was abolished on faith that the criminal justice system would continue to treat the offence with the utmost gravity. That was clear. We believe that loss of the mandatory life sentence for murder would undermine public confidence in the criminal justice system's ability to deal appropriately with these most serious crimes. This Government have sought to lead. But it is only right to say that in leading we have also sought to listen: to listen to what victims and witnesses say; to listen to what perpetrators say; and then to craft something which will meet the needs of justice.
	I hope that Members of the Committee will understand why I feel unable to agree to this amendment. It is not because it would expunge Schedule 17. The truth is that members of the public just would not understand. They would not understand because the fact that the life sentence exists is at least an acknowledgement that a life was removed. It is not dishonest because, as noble Lords will know, even if people are released after a specific time, they remain on licence. We have the opportunity to differentiate between the different categories.

Lord Ackner: Does the noble Baroness accept that now that the Secretary of State's role has been removed the procedure in relation to murder will be exactly the same as the procedure in relation to the discretionary sentences? At the hearing and after the pronouncement of the verdict, or the plea, in the discretionary case the judge is expected to say what is the length of time that the person should be in prison in order that the penal side—that is, the punishment and deterrent side—of the sentence should be satisfied. The judge will say what that period is; 20 years, 15 years, whatever it may be. Of course, at the conclusion of that period, the Parole Board will consider the issue of risk in relation to whether the person can be safely released.
	Exactly the same situation will apply in a murder case. In both manslaughter and murder cases, the judge can say, "I do not specify the penal side of this sentence because I do not think there is one that I should specify", thereby indicating that it is a whole-life sentence. The same will apply to a murder case, where it is appropriate.
	Therefore, the public do not see any difference at all. The removal of the Secretary of State's final discretion has made the procedure virtually identical. In those circumstances, it is difficult to see that the reaction of the public can in any way be different. In each case, whether it is discretionary or whether it remains mandatory but without the interference of the Secretary of State, the judge will lay down the penal side of the sentence if he considers it appropriate to do so. If he does not consider it appropriate, in both those cases he will say the same. Therefore, does the noble Baroness agree that the concern about the public is a little difficult to follow?

Baroness Scotland of Asthal: The noble and learned Lord will not be surprised if I say that I am unable to agree. The situation may be similar but it is not the same. The noble and learned Lord will know that in Schedule 17 and the clauses in this part of the Bill we are seeking to set a framework within which the courts will be able to exercise their discretion. Therefore, we are setting the bench-marks.
	The maintenance of the mandatory life sentence will continue. Of course, the court will determine the length of the determinate part of any given sentence. But if one looks at the starting points that we have indicated—the 15 years, the 30 years and the basis upon which a whole-life tariff should be considered—there is the voice of Parliament. Parliament is setting down the parameters, although not through the exercise of the Home Secretary's discretion on a case-by-case basis. But, in terms of setting the structure within which these offences will be judged, Parliament's voice will be clear.
	We are not proposing that Parliament should dictate to the judiciary how they exercise their discretion within the boundaries set, but the boundaries are none the less an important part of the response. If noble Lords consider the way that the courts—we shall come to this when we reach Schedule 17—will respond to sentences in relation to murder and life imprisonment and those in relation to other serious offences, they will see that there is a very clear distinction. I do not believe that anything I have said thus far militates against this proposal. The removal of the Secretary of State's individual discretion has been, and will be, replaced by a statutory framework which will give expression to Parliament's will.

Lord Thomas of Gresford: There is a weakness in the argument put forward by the noble Baroness. When a mandatory life sentence is passed following a murder conviction, the public know perfectly well that it does not mean life. They know perfectly well that there will be a release at some point in the future and that the whole thing is up in the air.
	To suggest that murder is unique because there is a death is wrong because there is a death in manslaughter cases. The family is just as distressed by what happens in a manslaughter case with the loss of a relative, and so on. I recall that I prosecuted a case in which a woman received an absolute discharge for killing her husband and living with the body for 20 years. She suffered from severe provocation and that was the final decision of the court. On the other hand, in other manslaughter cases in which I have been involved, life sentences have been passed. I should have thought it impossible to envisage a situation where a judge would not pass a life sentence, meaning a life sentence, in a case where there had been a depraved killing involving not only an intention to kill but also a desire to kill. It is impossible to consider that a judge would not pass a life sentence in a case where there had been a desire to cause grievous bodily harm, resulting in a killing.
	The point is that every case is different. It is for the judge, who hears the facts, sees the witnesses, sees the photographs and understands the whole case, to determine what is just for the individual defendant in the particular case, bearing in mind all the issues, including how the family feel and the fact that a life has been lost, and so on. Therefore, I do not believe that the unique quality of a murder case is anything like a sufficient justification for the mandatory life sentence.

Lord Lloyd of Berwick: I am grateful to those who have spoken in favour of the amendment. I listened with great care to what the Minister said by way of reply. I shall of course read it, but I hope that she will forgive me if I say that, for the moment, I do not find her reply completely satisfying. However, I bear in mind the point made by the noble Lord, Lord Clinton-Davis, which was supported by other noble Lords. This is a very important issue and perhaps tonight is not the time to vote on it. However, I shall certainly bring back the matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage begin again no later than 9.8 p.m.

Lord Ackner: Before the Committee adjourns, I made reference to a report that deals with a particular type of sentence. I have found the command paper. It is the report of the Committee on Mentally Abnormal Offenders, Command Paper 6244.

Baroness Farrington of Ribbleton: Perhaps it would be helpful at this stage if the noble and learned Lord, Lord Ackner, could write to my noble friend. She could then reply to him and place a copy in the Library.

Lord Ackner: That is much more convenient. All I am doing is indicating to the Committee the details of a report to which I referred. I shall not talk about its merits; I merely give the information. The nature of the sentence to which I made reference is to be found on pages 71, 72 and 73. As I suggested to noble Lords, they are cases of reviewable sentences. That is all I wish to add.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Employment (Northern Ireland) Order 2003

Baroness Amos: rose to move, That the draft order laid before the House on 8th September be approved.

Baroness Amos: My Lords, I beg to move that this House approve the Employment (Northern Ireland) Order 2003, a draft of which was laid before this House on 8th September 2003.
	The Order in Council is designed to assist in resolving employment disputes and to improve the operation of the tribunal system in Northern Ireland. It introduces a set of statutory minimum procedures that parties will be obliged to follow before a dispute is dealt with by either an industrial tribunal or the Fair Employment Tribunal (Article 15 and Schedule 1). The procedures comprise a straightforward series of steps; namely, a written statement or grounds for disciplinary action, a meeting to discuss the issue and an appeal process.
	The new dispute resolution procedures are aimed at encouraging early dialogue between employer and employee in the workplace, with a view to resolution without resorting to the tribunal system. However, where the procedures fail to resolve the matters at issue, the tribunal system needs to be capable of continuing to process meritorious cases judicially and fairly. That is achieved first by improved case management and secondly by the imposition of reasonable penalties (Parts 2 and 3). These may be imposed on those bringing misconceived or hopeless cases, on representatives who behave inappropriately and where there has been a failure to follow the statutory procedures. Tribunals will, therefore, be able to focus attention on cases most meriting their attention.
	The order also provides for the use of questionnaires in equal pay cases (Article 30) and sets out statutory rights to paid time off for trade union learning representatives (Article 31). All of those provisions correspond to measures introduced in Great Britain by the Employment Act 2002. They have been the subject of extensive public consultation in Northern Ireland, which elicited a very positive response. Members of the Northern Ireland Grand Committee warmly welcomed the draft order when they debated it in July this year.
	In conclusion, the employment order is a balanced package aimed at improving employment relations. It aims to ensure that tribunals are better placed to handle cases which cannot be resolved in the workplace and to give them an expeditious and fair hearing. I commend the order to the House.

Moved, That the draft order laid before the House on 8th September be approved.—(Baroness Amos.)

Lord Glentoran: My Lords, first, I welcome the noble Baroness, Lady Amos, to the Dispatch Box on what I believe is her first occasion as your Lordships', and the Government's, spokesman on Northern Ireland. Suffice it to say—I am sure the noble Baroness will not mind me saying this—I wish it were otherwise. Having said that, I assure her that she will have the co-operation and support of me and my party in dealing with Northern Ireland affairs. In this House in recent times we have not played party politics with Northern Ireland. We have striven to reach agreement as to what is the best way forward for the people of Northern Ireland. There will be times when we shall disagree, and that also I hope she will accept. Certainly, we shall accept that.
	I now turn to the order. I welcome it in principle. It certainly brings Northern Ireland a step further forward. It closes certain gaps between legislation in Northern Ireland and the United Kingdom. I welcome the advances in dispute resolution. Having spent nearly 30 years in manufacturing industry at one level or another and, at the end, at a fairly senior level, anything that can improve dispute resolution must be right.
	One key issue about the order is that it creates a time space in which dispute resolution can and may have a second opportunity for—if I may put it like this—resolution at the coal face on the shop floor, which I am sure that your Lordships will agree is the right place. Tribunals are all very well, but any dispute between management, employees and trade unions that can be solved at the works will always lead to a better future for that business.
	I am slightly concerned about the trade union learning representative. I certainly do not challenge the idea or concept, but I turn to the order. I have not read the order in great detail; I have actually skipped it all; although I have read Hansard from the other place and understand from the officials whom the noble Baroness agreed should brief me earlier on this matter—I thank her and them for that—that it has been through Committee in the other place; so it has been well scanned.
	What I do not like—and do not like in legislation per se—is a Bill being enacted that creates a position that is not really defined. As I understand it, the learning representative is not defined in any way. Will the noble Baroness assure me that that provision will be covered by codes of practice of some sort? Depending on the size of the business, whether it is a five man business or a 10,000 person business—perhaps in Northern Ireland that is too high; the last time that I looked the largest employer was employing about 5,000 people—there is a difference as to how much time and what sort of emphasis should be placed on a trade union learning representative.
	On the other end of that, I also wonder what other situations will be opened up. If you have a learning representative, he will be selling learning and education to the workforce—with which in principle I have no argument—but in due course its members will say to him, "I work my 39", or 38, "hour week; I do 10 hours of overtime and"—and, as some of my some of my workforce do, "I enjoy my shooting on Saturdays", and so on. "When do you expect me to go and do some more education?" I can see that evolving into employees wanting time off for education or employers being forced to give time off for trade union members to go on education courses of their own.
	I say, "Of their own", because most companies—most sensible companies—are always striving to improve the education and standards of skills—in whatever field: be it engineering skills; computer skills; or whatever. I should be interested to hear a little about how the Government see the learning representative transmitting his role into the workforce and the workforce transmitting that into reality in today's world at no cost to small business.
	That brings me to my last concern, which Jane Kennedy covered reasonably well in the other place: there should be no on-costs for small businesses as a result of the order. I should like confirmation of that if the noble Baroness can provide it.
	However, in principle and overall, we support the order as a whole.

Lord Shutt of Greetland: My Lords, I, too, welcome the Lord President, the noble Baroness, Lady Amos, to her role as Government spokesperson on Northern Ireland. The late Lord Williams of Mostyn certainly made Northern Ireland a special place within his portfolio of interests. I hope that the noble Baroness will follow his approach of inclusiveness and consulting and speaking to everyone who followed Northern Ireland affairs in the House. I hope that that way of working will continue as we all strive to solve the difficult issues in Northern Ireland. My colleagues and I wish the noble Baroness well in that work. We offer the support that we can give from time to time in trying to solve some of those difficult issues.
	I welcome the order. There has been much consultation on it. We were promised further consultation on a code of practice. Consultation is all about conciliation on the substance of the order. I am delighted that this is one area on which what is being done in Northern Ireland will mirror the approach in the rest of the United Kingdom.

Lord Rogan: My Lords, I congratulate the noble Baroness, Lady Amos, and wish her every success in her new position as Lord President and Leader of the House. I welcome her to the Northern Ireland scene. I declare an interest as the owner and director of several Northern Ireland companies.
	Businesses throughout Northern Ireland, and the Ulster Unionist Party, generally support the provisions of the Employment Order. Fair and effective mechanisms must exist to deal with disputes in the workplace; after all, a happy workplace is a productive one. Apparently, the number of industrial tribunals throughout the United Kingdom has tripled in the past five years. We must do all that we can to avoid getting into a situation where every grumble and disagreement ends up at a tribunal hearing. Tribunals do not make for happy or productive workplaces.
	We welcome the statutory dispute resolution procedures, set out in the order, to be followed by employers and employees. They will go a long way to enhancing the possibility of resolving disputes without resort to a tribunal or the courts. Furthermore, by cutting out unnecessary and trivial hearings, the dispute resolution procedures will also represent a significant saving to businesses and the public purse.
	I welcome the inclusion of the award of costs provision, which will continue to be the principal defence against vexatious claims. Although we recognise that reasonable time off for trade union learning representatives will be of significant benefit for individuals, their union colleagues and the workplace environment as a whole, the notion of "reasonable time" is vague. As the noble Lord, Lord Glentoran, mentioned, we must ensure that that provision does not put any undue strain on the resources of small employers who cannot afford continually to shoulder the absence of employees.
	The Ulster Unionist Party shares the concerns of the Labour Relations Agency about the effect that the introduction of a fixed time limit will have on how the agency offers and resources the individual conciliation service. The agency foresees significant practical difficulties in providing an effective conciliation service within such a tight timescale. Will the relevant documentation and key witnesses, for example, be available in a short period of time? Moreover, we are also concerned about the costs to small business, especially when other costs are being imposed on the small businesses of Northern Ireland, such as the huge increase in employers' liability insurance.
	The Labour Relations Agency is also concerned that its code of practice on disciplinary and grievance procedures, which is universally accepted and acknowledged as representing good practice, was not fully considered by the Government. Do the Government intend to retain the standards contained in this code of practice? In conclusion, we are happy to support the order and hope that the Government's ambitions in introducing it will be satisfied.

Lord Brooke of Sutton Mandeville: My Lords, I also take pleasure in the noble Baroness the Lord President undertaking responsibility for Northern Ireland affairs in your Lordships' House. It is a compliment to the Province that she undertakes those responsibilities, but I join my noble friend Lord Glentoran in his implicit tribute to the late Lord Williams of Mostyn for his conduct on Northern Ireland affairs in your Lordships' House, which I am sure the whole House would agree was exemplary.
	I have a curious personal pedigree in these matters of Northern Ireland legislation in fair employment. In 1989, I succeeded my noble friend Lord King of Bridgwater, whose legislative package during his time as Secretary of State included the 1989 Fair Employment (Northern Ireland) Act. By chance, the Lords amendments being taken to that Bill in the Commons during the summer of 1989 occurred during a curious week when my noble friend Lord King remained the Secretary of State for Northern Ireland before becoming secretary State for Defence. The then Secretary of State for Defence, the late Lord Younger, could not give up office until he had concluded entertaining the first Russian Minister of Defence ever to visit this country. I therefore sat on the Front Bench in the other place in my former role while my noble friend Lord King dealt with your Lordships' amendments to that Bill.
	My second involvement was rather more direct. I chaired the Select Committee on Northern Ireland Affairs in the other place in the last Parliament, and, in 1999, we undertook a review of the working of the Fair Employment (Northern Ireland) Act at the time of its 10th anniversary. I recall the view of Ken Livingstone who was then a member of the Northern Ireland Affairs Select Committee, who confessed that he had originally thought that the 1989 Act had simply been a sop to critics of prior practice. He acknowledged that in the ensuing decade it had made a real difference.
	As the late Lord Williams of Mostyn used to remind us, the role of this House in the scrutiny of orders during the time that the Assembly is suspended is an important one in substitution for the Assembly. Because of that emphasis, I have a greater interest in the Explanatory Memorandum than in the order itself as a guide to the reactions in the Province to the substance of the order. Paragraph 11 on page 13 of the Explanatory Memorandum refers in detail to the four consultations that have taken place—one by the Department for Employment and Learning in conjunction with the Office of the First Minister and Deputy First Minister and the other three issued by the Department for Employment and Learning.
	The first three consultations clearly took place while the Assembly was, in principle, sitting, culminating in the fourth consultation, which took place between April and June this year—which indicates that, by that time, there was no chance of the Assembly playing any role because it had been suspended. Paragraph 6 on page 2 of the Explanatory Memorandum describes a favourable reaction overall to the four consultation documents within the Province, as the noble Baroness said in moving the order.
	Against that background, I turn to paragraphs 20, 24 and 26, on pages 14 and 15 of the Explanatory Memorandum. I have two questions and a comment. My first question is about paragraph 20, which deals with the equality impact assessment. Line 5 states:
	"This should help to reduce the growing pressure on the tribunal system, further assisting those with substantive cases to secure justice".
	I should be grateful if the noble Baroness could say a word about the "growing pressure" to which the Explanatory Memorandum refers and, especially, about the scale of the problem.
	I have a comment, rather than a question, on paragraph 24. Line 5 states:
	"Small business will see a particular impact as this sector's common lack of detailed disciplinary and grievance procedures has made it particularly vulnerable to a tribunal system that places considerable weight on process. This group"—
	small business—
	"will be a net gainer".
	On the basis of the Select Committee's report on the first 10 years of the working of the Fair Employment (Northern Ireland) Act 1989, I can recognise the potential truth of that observation and of that conclusion.
	My last question relates to paragraph 26 of the Explanatory Memorandum. My noble friend Lord Glentoran raised the question of how learning experience would be secured. I use that word to embrace the total process. Line 5 of that paragraph says:
	"Employers will incur costs in terms of paid and unpaid time off amounting to perhaps #0.5 million a year, but they should see benefits in the form of increased productivity, innovation, job satisfaction and thus retention".
	My question about the paragraph relates in particular to the reference to "increased productivity". The memorandum states that employers should see benefits in the form of increased productivity. I would be interested to know the basis for the Government's confidence in that increased productivity. In general, the Government, despite their best intentions and their best efforts—I pay tribute to both—have had some difficulty raising productivity in the past six years faster than the previous government did over the prior six years.
	Overall, I join my noble friend Lord Glentoran in welcoming the order.

Baroness Park of Monmouth: My Lords, I have no questions about the order. I merely wish to take the opportunity to join everyone else in warmly welcoming the noble Baroness the Lord President of the Council to the Northern Ireland scene. I know that she already has some knowledge of the Province, and I hope that she will be able to spend time there. I also hope that we may look forward to meeting the Secretary of State with her and under her auspices, as we did in the past, from time to time, under her very great predecessor.

Baroness Amos: My Lords, first, I thank all noble Lords who have spoken and have welcomed me so warmly to the Northern Ireland portfolio. I entirely share the sentiments expressed with respect to the late Lord Williams of Mostyn. He was a very special person.
	I was a regular visitor to Northern Ireland in a previous job. I look forward to working with noble Lords on Northern Ireland. I assure noble Lords—in particular, the noble Lord, Lord Shutt of Greetland—that I will carry on the practice followed by my predecessor of bringing noble Lords together for regular meetings about Northern Ireland issues. I welcome the comment made by the noble Lord, Lord Glentoran: it is not the politics that matter, it is the future of the Province.
	Several specific questions were asked about the order. I shall try to answer them. I appreciate the welcome given to the order around the House. The noble Lords, Lord Glentoran and Lord Rogan, asked, in the context of time off for union learning representatives, who will decide what "reasonable time" means? Practical guidance on what constitutes "reasonable" will be provided by a code of practice. The current Labour Relations Agency code on time off for trade union duties and activities has worked well and has reduced the scope for disagreement. It may require to be revised to reflect the new right to paid time off for union learning representatives.
	The noble Lord, Lord Glentoran, also asked whether there was an inference that employers would be required to give employees paid time off to pursue learning activities. The answer is "no". It is entirely a matter for discussion between employer and employee as to whether the learning activities covered by paid time off were in the employee's own time. In respect of the question about costs for small employers, the assessment of the regulatory impact of the proposals confirms that the projected costs to Northern Ireland businesses would be minimal.
	The noble Lord, Lord Rogan, asked a wider question about the burden on small employers. The order aims to ensure that by adopting very simple and straightforward procedures employers will be able to resolve an increased number of disputes internally, thereby avoiding the expense of tribunal proceedings.
	With respect to the noble Lord's question about how long the fixed period would be, that is a matter for the regulations. It is envisaged that the regulations will set a maximum length, which could be in the region of three months. It is an area for discussion with the Labour Relations Agency and it is one on which the department would wish to consult.
	As regards the Labour Relations Agency's concerns about resourcing, also raised by the noble Lord, Lord Rogan, in a debate in another place on 17th September, my honourable friend indicated her willingness to meet with the agency to discuss any concerns. I can confirm that a meeting has now been arranged for 12th November.
	The code of practice on disciplinary and grievance procedures was raised by the noble Lord, Lord Rogan. The standards laid out in the current Labour Relations Agency code of practice continue to represent good practice. However, the new statutory minimum procedures are aimed particularly at small firms which may have few or no procedures in place. The department will be working closely with the agency over the coming months to ensure that the code of practice is revised to reflect the new statutory minimum procedures.
	The noble Lord, Lord Brooke, asked specifically about pressure on the tribunals system. The number of applications to industrial tribunals rose by more than 60 per cent between 1991 and 2001, while applications to Northern Ireland's Fair Employment Tribunal went up by a staggering 185 per cent in the same period. I appreciate that in certain cases recourse to a tribunal is the most appropriate means of addressing a problem, but they spend a great deal of time on cases where no attempt has been made to resolve the issue in the workplace. That is why the dispute settlement procedure is one we are promoting.
	On the question of increased productivity, I hope that noble Lords will agree that a more skilled, talented and well-educated workforce is better placed to increase work output. However, I entirely accept the point behind the question posed by the noble Lord, Lord Brooke, about how we are going to measure that. If I can find out any more information, I shall come back to the noble Lord. That covers the questions I have been asked. I commend the order to the House.

On Question, Motion agreed to.

Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003

Baroness Hollis of Heigham: rose to move, That the regulations laid before the House on 10th September be approved [27th Report from the Joint Committee].

Baroness Hollis of Heigham: My Lords, I beg to move that the draft Child Support (Miscellaneous Amendments) (No. 2) Regulations 2003 laid before the House on 10th September 2003 be approved. The word "miscellaneous" used here is appropriate.
	The regulations before us today make a number of diverse amendments to seven of the many sets of regulations which govern both the old and new child support schemes. This package is largely made up of amendments to regulations governing the new child support scheme and to "transitional" regulations which relate to the transfer of cases from the old scheme to the new arrangements. A small number of cases, linked to new cases—that is, where someone has multiple partners—have already moved from the old to the new scheme. But the bulk transfer of cases will take place in due course once we are satisfied that the new arrangements are working well.
	In addition, this package includes a number of amendments to the old scheme. Most of the amendments reflect that the world has moved on in the time since we made regulations for the new scheme. The introduction of the new state pension credit is one example of this. Finally, some of the amendments in this package make minor technical corrections to reflect what was intended in the new child support scheme.
	I shall not go into great detail, but given that the other place has not yet looked at these regulations, perhaps it may be helpful if I set out some of the more important changes.
	One of the changes to the old scheme to which I referred a moment ago is consequential on the introduction of the state pension credit which replaces the minimum income guarantee, the title given to income support for people aged 60 or over. In the old child support scheme it is possible, in prescribed circumstances, to seek a "departure" from the standard formula for making a maintenance assessment. The amendment made by Regulation 2 to the Departure Direction and Consequential Amendments Regulations provides that recipients of state pension credit shall not have, or be the subject of, a departure in the circumstances which previously excluded recipients of the minimum income guarantee; that is, a straight word substitution. This is for the sound reason that a person who receives a state pension credit will, like those on minimum income guarantee, be treated as having no "assessable income" for the purposes of making a maintenance assessment. Therefore a "departure" would be futile as it would have no effect on the amount of maintenance payable. This amendment mirrors not only the minimum income guarantee position, but also the treatment of persons in receipt of income support and income-based jobseeker's allowance.
	Regulation 3 makes a number of amendments to the old scheme's Maintenance Assessment Procedure Regulations. One of the amendments I would like to bring to the attention of noble Lords takes account of the changes made to remove residential allowances in income support or income-based jobseeker's allowance, and of changes in terminology in relation to "care homes". This has arisen as a result of both Department of Health and Scottish legislation. As noble Lords may be aware, a parent with care is required to apply for a maintenance assessment if income support or income-based jobseeker's allowance is claimed by, or is payable to or in respect of, her. If, without good cause, she does not co-operate with the CSA, the agency may make a "reduced benefit direction" that lowers the amount of her benefit.
	The amendment ensures that the reduced benefit directions are suspended if the parent with care is in a residential care home or independent hospital or, in Scotland, is provided with a care home service or independent care service. This suspension is necessary because parents with care are normally left with what used to be known as the "pocket money" rate of income support, and what we now call the "personal allowance" rate of some #17 of income support when they move into such accommodation or receive such services. This rate of benefit would clearly not sustain a reduced benefit direction.
	The amendments made by Regulation 4 are to the Child Support Maintenance Assessments and Special Cases Regulations which relate to the old scheme. They are mostly technical and relate to changes made by other legislation. To give just one example, to correspond with the treatment of minimum income guarantee, as I mentioned earlier, recipients of state pension credit will be treated as having no assessable income for child maintenance purposes.
	The amendments to the new scheme Maintenance Calculation Procedure Regulations made by Regulation 5 are consequential to changes made to income support or income-based jobseeker's allowance and upon changes in terminology relating to "care homes", the changes to which I have already outlined. However, in the same way that we have made adjustments in Regulation 3 to the old scheme, here we are making adjustments to the new child support scheme.
	Similarly, Regulation 6 makes several amendments to the Maintenance Calculations and Special Cases Regulations which relate to the new child support scheme. The most noteworthy change is in cases where a non-resident parent has to pay maintenance under child support rules to one child or children, and maintenance under a court order for another child, both at the same time. The amendment ensures that the payment made in respect of the qualifying children that fall within child support rules is never less than the flat rate of maintenance of #5 a week. This provides consistency with other new scheme provisions that prevent liabilities from falling below the flat rate amount.
	The transitional regulations make provision for how and when old cases will convert to the new scheme. They allow changes in liability to be phased in over a period of five years in specified cases. Phasing is intended to allow both parents with care and non-resident parents time to adjust their household budgets. It is crucial to the success of the new scheme that phasing is allowed to work properly, and the CSA fully intends to enforce these phased liabilities. Otherwise, obviously, someone's liability could go up by far more than their wage increase that year; on the other hand, a parent with care could equally find a very substantial drop in the child support around which they had budgeted, for example, their return to work. So the phasing works for both parties, preventing both substantial increases and decreases.
	The several amendments made to the transitional regulations made by Regulation 7 ensure that the provisions in this complex area work as we intend them to. For example, in the old child support scheme, a non-resident parent can apply for an allowance in their "exempt income" in recognition of a property or capital settlement made before April 1993. The transitional regulations provide that when a case with such an allowance is converted to the new scheme, that allowance becomes a "relevant property transfer". In other words, if the non-resident parent is supporting the parent with care through support for the property, this should be appropriately taken into account.
	However, in the new scheme, a maintenance calculation can be "varied" to take account of a pre-1993 transfer. I say "varied" because the language under the old scheme is "departures" and the language under the new scheme is "variations". One amendment made by Regulation 7 makes it clear that a non-resident parent cannot have both a relevant property transfer and a variation in respect of the same pre-1993 property or capital transfer at the same time. Without this amendment, the non-resident parent would have two separate adjustments to his weekly liability—in effect, a double benefit; he would get the benefit twice over—in respect of the same pre-1993 transfer. This was never intended and we need to clarify the wording.
	The amendment made by Regulation 8 is consequential to the relevant property transfer amendment to the transitional provisions made by Regulation 7, to which I have just referred. It amends the variations regulations to ensure consistency with the position in the transitional regulations.
	Those are the most significant changes in the package. As I have tried to describe, several of them relate to terminology in terms of replacing minimum income guarantee with pension credit; others reflect the new arrangements for financing people in care homes; and others relate to retirement pensions, to going beyond the #5 income and to rectifying any possibility of a double consideration for property transfer. I shall be happy to cover other of the amendments—which are, for the most part, technical—if noble Lords so wish.
	I draw to your Lordships' notice that we are a little late, with some of the regulations before us today amending the regulations concerning child support arrangements as a consequence of earlier changes made to other legislation. State pension credit, for example, was introduced just over a week ago. I apologise to your Lordships but I hope that you will agree that it is important that we get the amendments right.
	The regulations before us today underpin our continuing commitment to making sure that child support works for both parents and their children. As I said, they are miscellaneous regulations. I accept that they are quite hard to decipher as they stand because they regulate changes in regulations to regulations. I have produced a "health warning" version—a kind of keeling schedule—which I hope will make the situation a little clearer. I only regret that I did not have that bright idea a few days ago and send it to your Lordships earlier.
	I am satisfied that the regulations are compatible with the European Convention on Human Rights and I commend them to the House.
	Moved, That the regulations laid before the House on 10th September be approved [27th Report from the Joint Committee].—(Baroness Hollis of Heigham.)

Lord Higgins: My Lords, the history of the Child Support Agency is a long-running saga. One of the advantages of transferring from another place to this House is that one no longer has to deal with Child Support Agency constituency cases.
	This subject does not often create headlines but I was rather struck by an article in the financial supplement of the Mail on Sunday which described the present situation as the mother and father of all mix-ups. Underneath that rather exotic headline was a remarkably good, well researched article by a Mr Stephen Womack on the present state of play in child support matters.
	The situation is enormously complicated, as was apparent from the noble Baroness's as always very helpful remarks, by the fact that we are running two systems side by side. Some of the provisions in the regulations relate to the transitional arrangements—some to one system and some to the other. This complication is bound to give more scope for those who are playing the system, one way or another, in trying to avoid paying the amount they are due to pay in child maintenance.
	The noble Baroness spelt out a number of changes, some of which are purely terminological. Every time the Government change this or that aspect of the social security system, there will be more and more changes in the Child Support Agency system. I do not think this is helpful for those trying to administer it, nor is it helpful for the agency with regard to its computer programmes and so on.
	I still do not fully understand some of the complications. For example, I would have thought that for a war widow, the question of child support does not necessarily arise. Perhaps the noble Baroness could clarify how that will operate. Similarly, there is a change in the occupational pension definition to cover a new type of pension. I am not at all clear about the relevance of that.
	The noble Baroness has, in her usual helpful way, provided me and, I imagine, the Liberal Benches, with a new set of documents which show how the various changes in these regulations will affect earlier ones. We do not have a provision for delegated legislation in the same way that we do for consolidation of primary legislation. However, it is now getting so complicated here that if the kind of document which the noble Baroness has produced for us, which shows the changes in italics, could be made available to those who, one way or another, are involved with the Child Support Agency, that would be of great benefit.
	In the context of these changes, I am not at all clear how the system will operate. As I understand it, around 1 million cases operate under the old scheme. At the same time, there is a constant inflow of cases being dealt with under the new scheme. One of the problems that we pointed out when the primary legislation was being debated was that the absent parent was likely to find himself in a better position under the new scheme than the old one. Therefore, there will be constant pressure to accelerate the move—my goodness, it has not been accelerated much so far—from one system to the other, but that will be to the detriment of the parent with care.
	I am sure the noble Baroness is right in saying in her opening remarks that we want a smooth transition, but the changes will take place, as I understand it, over a period of five years. We have had a delay in making the change anyway because of the repeated delay—although foul-up might be a better expression—regarding the introduction of the computer. This means that the overall timescale is now stretching out further and further. Meanwhile, a good many people are still under the old system.
	I was fascinated to read an extremely helpful evidence-taking session by the House of Commons Work and Pensions Committee on 2nd July. At that stage, the chairman of the committee seemed somewhat to despair, especially in relation to the evidence that had come from the trade union concerned. He said:
	"My heart sank because we were back to cases being stockpiled, management systems failing, delays occurring and staff wastage figures still unacceptably high . . . I cannot understand how we got here. This is the second time around".
	In particular he drew attention, as the evidence session generally did, to the problems arising from the computer system, and the continued problem of non-payment. The latest figures provided were for November last year. They tell us that 384,000 parents with care are entitled to receive child maintenance; 70,000—more than 20 per cent—receive no payment; and 193,000 receive less than they are entitled to. All that suggests that the system is seriously failing to operate as it should.
	There is one point in relation to the evidence on which it would be helpful to have a view. I refer to the issue of the computer system. Apparently, it costs 20 per cent more to process each claim than it did before the introduction of the new system, which was supposed to simplify it. The report said that there was,
	"a mix of IT difficulties . . . and cultural problems associated with the shift to the new arrangements".
	I am not clear what those cultural problems are, but perhaps the Minister could give us some indication.
	It is important for us to understand, in the mass of figures that are being introduced, whether the main stockpile is going up or down. Is the number of cases coming in greater or less than the cases being dealt with? From the figures that I have studied, I am not clear what the situation is with regard to the very substantial backlog.
	Finally, will the Minister clarify the situation on sanctions? Given the figures that I quoted earlier, I am not clear how many cases are now being dealt with by an earnings deduction order. It seems unlikely that we should have failure to pay on the scale to which I referred, if that mechanism were being used effectively.
	With regard to the evidence to the Commons committee, how satisfied should we be and how satisfied are the Government about the sanctions imposed on those who are not paying? In the course of the passage of the primary legislation, we spent some time debating whether driving licences should be withdrawn. At the time, I believed that to be rather a sledgehammer to crack a nut. However, so far only two driving licences have been removed and only 11 cases have been brought. It seems extraordinary that we legislated for that and debated a clause at length in this House, if that kind of sanction, whatever one's views on the merits of it, is to be introduced. Will the Minister bring us up to date on that?
	Apparently, the sanctions have operated so poorly that #2 billion has been written off so far. That is obviously a considerable failure of the system, which one would have thought would have begun to operate a little more effectively than it has, after 14 years. I have always conceded that the original legislation was seriously deficient in dealing with both new and old cases. However, 14 years on, one would have thought that the situation would have been rather better than it is.
	The complexity being introduced by the order, on top of all the other complexities, means that the chance of the system operating effectively and of the agency managing to cope effectively is bound to be greatly diminished. I am grateful to the Minister for her help; we are all on the same side on the issue and we all want the system to work effectively, but it is in a pretty sorry state at present.

Earl Russell: My Lords, first I should like to thank the noble Baroness—and, through her, her officials—for the issue of what I may best describe as the Keeling guidance. This is an extremely helpful document.
	Regulation is a form of legislation by crossword puzzle. What we normally get is the insertions in the crossword without the blank squares and without the clues. That is slightly confusing. I agree with the noble Lord, Lord Higgins, that the measure will be very, very helpful not only to us here—the stately progress of the Criminal Justice Bill has given me occasion to examine it with rather more care than I might otherwise have been able to do—but also to many people outside this House. I support his suggestion that it be made more widely available. I hope that that precedent will be followed.
	The regulations are what I might best describe as sandpaper regulations. They smooth the rough corners of the joints not only between the old regulations and the new but also between the new and other legislative developments, such as the pension credit and the new-found doctrine of equality between widows and widowers. Where one is dealing with sandpaper regulations I do not think that it is an occasion for examining all the original pieces of wood whose corners are being smoothed. I do not think that it is an occasion for discussing policy. The Minister and I have done that at great length. I think that it was—on both sides, I hope—an extremely high level of discussion and there is no point in doing it again now.
	We have discussed how far the Act is capable of working. Again, I do not think that we have anything to add to that now. We have discussed the delay in the Act and the computers. Again, I do not think that there is any need to add anything to that now. If one looks only at the sandpapering of the joints—which is what these regulations are about—I see no reason for criticism. In fact, so far as I can see, it has been extremely well and competently done. There is a spit and polish about this which I find on the whole reassuring.
	There are one or two matters that I should like to raise as questions. I should like to know how the provisions for residential care under Regulation 5, and in other cases, affect women's refuges. There is a possibility of legislation being introduced on women's refuges so there may be another occasion on which to raise the matter. However, this is something that one tends not to think about because it does not come in the categories that anyone is thinking about when they prepare regulations. Therefore, I hope that the question is not redundant.
	I should like to welcome the provision for equality between war widows and war widowers. In answer to the question of the noble Lord, Lord Higgins, about how that could apply, I say that people are capable of having children by more than one partner. That has been known. I am indeed the product of such a thing myself. I should like to congratulate the Government on the provisions for the training allowance.
	I should also like to raise a general question regarding how far we should go ahead with the making of affirmative regulations because it is possible that at some stage something controversial might be done under the power. I can see that something controversial could have been done under these powers, but I see nothing in the contents of these particular regulations which would call for them to be affirmative. I think that we should perhaps consider the suggestion that the noble Lord, Lord Skelmersdale, made at the very beginning of the Delegated Powers Scrutiny Committee, as it then was. Where something under the affirmative procedure gave rise to no controversy, he suggested that it might be possible to let it go through on the nod. With that thought, I hope that the Minister will forgive me for leaving the matter.

Baroness Hollis of Heigham: My Lords, I am very grateful that noble Lords found the Keeling guidance helpful. I will take the matter away and see whether, under regulations in not only this field but others, it can be generalised. I accept that, when we start amending regulations in terms of amended regulations, it is a jigsaw without a picture on the box. That is part of the difficulty.
	The noble Lord, Lord Higgins, talked about the complexity involved in making changes described aptly by the noble Earl, Lord Russell, as sandpaper changes. The situation is not possible to resolve. By definition, one has to adjust and adapt the language of any piece of legislation and subsequent regulations that refer to income in any form whenever one changes the format of the income, particularly benefits or tax credits. Our staff are well aware of what pension credit is—minimum income guarantee with a savings credit—and will not find themselves baffled by it. Obviously, we have to protect the legal basis of our assessments in such a way.
	The noble Lord asked a couple of specific questions about the regulations. The first was on war widows under Regulation 6 and so on. That says that a non-resident parent receiving a war widower's pension should be treated like a war widow and as a result have a flat-rate liability. The numbers are very small, but the question is one of equity. Since introducing the provision, the rights of men to a war widower's pension have been established. That is why the change is necessary.
	The noble Lord's second point was on pensions under Regulation 6(2)(e). My understanding is that we are adding schemes that, because of their statutory basis, do not need to go through IR approval. In other words, they are additional schemes that have a statutory basis and are not covered by the existing IR approval basis. Some additional police and local authority schemes come into that category. I am happy to write to him further on that if he would like.
	The general points that the noble Lord raised were about the computer being a mess. I think that people believe that we have a simpler computer because we are simplifying the system. That is not the case. Given the pathway into child support through Jobcentre Plus and the #10 payment to the parent with care back on to their income support or income-based JSA, we need an interface that we have never needed to establish before between the old income-support computer—it dates from the 1980s—and the new system. The system is extremely complex. As I understand it, the DWP systems are larger than the tax self-assessment computer and several times larger than the biggest banking system, which belongs to Lloyds-TSB. That may give some idea of the complexity.
	That is not to seek to diminish the very real teething problems that we have experienced as we have gone along. However, to get those in proportion, the Standish Group said in 2001 that only about 16 per cent of public and private major computer schemes were on time, that the average cost-run in all schemes was about 75 per cent, and that the average over time applied to more than 50 per cent. Although I would not wish to say that, by those standards, the CSA computer was a success, none the less its performance is not out of line with what we know to be the case with very large and complex computer schemes.

Lord Higgins: My Lords, as I understand it, the Government propose the so-called migration from one scheme to another to take place in one big bang. That seems to be the case from the evidence given to the Select Committee. Is the computer system capable of suddenly taking on a million extra cases all in one go? It seems rather hazardous, given the amount of data involved in those cases.

Baroness Hollis of Heigham: My Lords, the noble Lord's point is very acute and well taken. The Secretary of State has not yet made and will not make a decision on when we bring the existing cases over. Clearly, they have to be migrated in terms of the system before we actually bring individuals on to the system. There may well be a case for what I would call a more incremental approach, but those and similar options are being explored. The important point—and we have the support of all the voluntary organisations to which I have spoken—is that we ensure that as we bring new cases on, they have the smoothest possible transition. It may well be that the proposal of the noble Lord is one way to do that, but no decisions have yet been made on that. We are still ironing out some of the teething problems with the new cases.
	I turn to the second point raised by the noble Lord, which concerns sanctions. He asked about the deduction order. Although it is not necessarily a sanction, many people choose to pay by a deduction from earnings, in the same way as the noble Lord may pay his bills by direct debit. He was right in his point about driving licences. It is the case from the latest figures that I have that only about two licences have been taken away. The point to bear in mind is not that we wanted to take driving licences away, but that we wanted to make non-resident parents, particularly the self-employed with the white van, pay up. And they pay up, when they realise that they may lose their driving licence and therefore their livelihoods. Sometimes, there are cases where people are #40,000 in arrears. They have five children and are ducking and weaving. They clearly appear to have the resources to pay some of those sums. We have found that the threat of removal of a driving licence sometimes focuses minds wonderfully in generating a willingness to work with the agency in tackling questions of arrears and coming into the system.
	The noble Lord asked about the two billion of moneys written off. Yes, that is the total money not collected nominally. I am not making excuses, but we need to disentangle it. Some of that money—maybe a third or a quarter—would have come from NRPs who are now dead or who are overseas and untraceable. Although the money is on the books, we are unlikely to be able to obtain it for fairly obvious reasons.
	Another portion of the money—something of the order of a third, but I do not wish to be held to account in my statistics—is again nominal moneys. Under the old scheme that I wanted to drop, but not under the new scheme, if a non-resident partner did not reply fairly quickly, we introduced a punitive assessment, which might well have been two or three times more than his true assessment based on his income. The arrears also reflect that figure. There is then the real chunk of moneys which we should collect and which we are seeking to collect and to pursue, but one needs realistically to disentangle some of those figures.
	The noble Earl, Lord Russell, asked a specific question about women's refuges. The sanctions that apply to lone parents who have failed to co-operate apply only where no good cause has been established. If a woman has moved to a refuge, it appears a prima facie case that she has done so from a well-founded fear of distress and violence. Therefore, "good cause" should apply. I have had no evidence that our "good cause" provisions have produced hardship or unfairness, let alone threats or danger to women.
	I shall make two final points. We obviously have teething problems with the computer and we all agree that we should adjust that and make sure that the system is robust before we introduce the new cases.
	We should also emphasise just how successful is the new policy. I was there when an NRP received a cold call informing him that he would be required to pay maintenance. He was receiving JSA and we told him that under the new scheme he would be paying five pounds per week. He then said that he was looking for a job and asked what he would have to pay when he found one. He had one child, Alicia. The young woman to whom he was talking told him that he would pay 15 per cent of his net pay. He said, "Oh, fine. That's okay". He then went off to look for a job.
	It is clear that a lot of the hassle that we have suffered in the past, legitimate or otherwise, from NRPs who do not know what they should pay and distrust the figures that we had arrived at, which may have been wrong in the first place, seems to be disappearing as a result of the transparency of the new scheme. The anguish, distress and protests of clients are about the speed and reliability of the computer and not about the formula itself. As one member of staff said to me, "When we've got the computers sorted, we'll fly". I am sure that that member of staff was right.
	We are now clearing thousands of cases each week. In response to the noble Lord's question about inflow and outflow, the number of new cases cleared in September was greater than the corresponding number of old-scheme cases cleared in September last year. We are clearing new cases as fast as they are coming in—apart from the difficult ones which have relations linked to the old scheme and take longer to resolve. More than one half of applications are reaching a maintenance calculation compared with only one-third under the old scheme. Cases that in the past took up to 18 months to bring to enforcement procedure are moving to enforcement within three months. The poorest families are starting to benefit in real terms from the child maintenance premium.
	We are beginning to see some of the policy consequences that your Lordships supported when the Government introduced the scheme. We have a long way to go and we are not yet ready to take the mainstream old cases on to the new system. We will do so when we are confident that the system and the computer are robust. However, I am sure, and all the evidence shows, that the policy reforms were decent, proper and will ultimately ensure that more money goes to more children, which is what we all want.

On Question, Motion agreed to.

Criminal Justice Bill

House again in Committee.
	Clause 254 [Determination of minimum term in relation to mandatory life sentence]:

Baroness Anelay of St Johns: moved Amendment No. 209A:
	Page 147, line 5, after first "sentence" insert "for an offence committed before or after the commencement of this section"

Baroness Anelay of St Johns: Here we are again. We have debated 10 groups so far and we have only another 20 to go before we are allowed to go to bed by the Government Chief Whip.
	In moving Amendment No. 209A, I shall speak also to Amendments Nos. 210A and 210B. For the avoidance of doubt, I make it clear from the beginning that these amendments and those which follow in the next group to Schedule 17 are today all probing amendments. I am trying to clarify some of the details of the Government's proposals on the new statutory minimum term for murderers.
	Amendment No. 209A would make it clear on the face of the Bill that the new sentencing regime for murder contained in Chapter 7 of Part 12 would apply to offences that have been committed before as well as after commencement. Clause 254(1) provides that the new system will apply when the court passes a life sentence after the commencement date. But of course the murder could have been committed many months or years before that date. The clause is silent on whether it will apply to offences committed before commencement. No provision similar to that is present in Clause 270(5), which states that the penalty of 14 years for causing death by dangerous driving will apply only to offences committed after the commencement date. Amendment No. 209A therefore gives the Government the opportunity to make clear how the new system is intended to work in such cases.
	Amendments Nos. 210A and 210B seek to probe the wording of Clause 254(5). That subsection specifies that when considering the seriousness of an offence of murder, the court must have regard not only to what is set out in Schedule 17 but also to,
	"any guidelines relating to offences in general which are relevant to the case and are not incompatible with the provisions of Schedule 17".
	The amendments seek clarification of what kinds of guidelines issued by the Sentencing Guidelines Council the Government may have in mind. When the Government state that the court must have regard to guidelines relating to "offences in general", do they mean that the court will have to consider a single set of generic guidelines relating to the general arrangements for the sentencing of all offences? Or do they mean that the courts will have to consider a number of guidelines each relating to a particular type of offence? What is meant by "offences in general"?
	In what circumstances do the Government envisage that the guidelines issued by the Sentencing Guidelines Council in respect of offences in general will be incompatible with what is set out in Schedule 17? Those are the matters on which I should be grateful for some clarification.
	In addition, what appears to be an error in the Explanatory Notes has been brought to my notice. It may simply be an omission from the Bill or it may be the way that the Explanatory Notes have been written. Paragraph 560 of the notes states that subsection (5), to which I have just referred, will enable the court to take into account,
	"any additional guidelines that may be issued by the Lord Chief Justice or by the Sentencing Guidelines Council".
	But, of course, Clause 262 states that the definition of "guidelines" in Chapter 7 of Part 12 is the same as in Clause 165(1)—namely, guidelines issued by the Sentencing Guidelines Council. Therefore, what is the purpose of that reference to the Lord Chief Justice? Was it simply a googly thrown in in error and not expunged later or is there something really relevant in that? I beg to move.

Baroness Scotland of Asthal: I hope that I shall be able to give the noble Baroness the assistance that she seeks. I shall not recite what each amendment says because I understand that they are all probing.
	I believe that the concern raised in Amendment No. 209A is already provided for in the Bill. The issues of retrospectivity and the compatibility of transitional cases with convention rights were considered in the drafting of these provisions. Paragraphs 9 and 10 of Schedule 18 provide for judicial determination of tariffs under Clause 254 where the offence was committed prior to the commencement. But they stipulate that the court may not set a minimum term higher than it believes the Secretary of State would have set under the former arrangements. We believe that that is compatible with Article 7 of the convention. I hope that that sets the noble Baroness's mind at rest in relation to that amendment.
	Amendments Nos. 210A and 210B would alter Clause 254(5)(b) to provide that the court, in setting a minimum term, must have regard to the general principles and any guidelines. The amendments would allow courts, in setting tariffs, to follow principles set out in general guidelines which were not compatible with Schedule 17. I understand that that is not what the noble Baroness wants, but she does want an answer. Therefore, the current drafting seeks to achieve clarity. It is not probable that the Sentencing Guidelines Council will wish to issue guidelines that are counter to legislation. Therefore, we do not anticipate a direct conflict between the mandatory life principles and any guidelines issued by the council.
	However, the council will, on occasion, want to issue guidelines which cut across a range of criminal offences. In some cases, those might be properly applicable to murder tariffs; for example, the council might issue guidance on guilty pleas. Schedule 17 provides that the court may take into account guilty pleas when setting minimum terms. In other cases, the position might be more confusing; for example, the council might issue guidance on mitigating factors in criminal cases generally. It is possible that some of the content of such guidance would cut across the Schedule 17 principles were they to be applied to murder. Therefore, while the council might well never intend the guidelines to apply to murder, we wish to make it absolutely clear on the face of the Bill that courts should consider the Schedule 17 principles as paramount should there be any confusion.
	Our intention is that Schedule 17 principles must be the overriding principles in setting minimum terms for murder cases. Therefore, I am unable to accept the amendment. I hope that the noble Baroness will see how the two fit together and why we have set out the provision in the way that we have.
	Amendment No. 252ZA would remove the provisions allowing for the commencement of the new minimum term arrangements two weeks after Royal Assent. That would result in Chapter 7 becoming subject to Clause 305(3), which states:
	"The remaining provisions of this Act come into force in accordance with provision made by the Secretary of State by order".
	The introduction of the new arrangements would be delayed. That means that in the interim there would be no provision for adults convicted of murder to have their tariffs determined in a manner compatible with their convention rights.
	That is the reason why we think that the amendment is not necessary. There are about 600 prisoners who have been convicted but have not yet received a tariff, so as a result of the Anderson judgment, this substantial number must be dealt with quickly and efficiently out of consideration for the human rights of the offender and to bring some closure for the family and friends of the victim. The longer we wait to bring in compatible arrangements for tariff setting the greater the number of those awaiting tariffs will grow. That will also increase the burden to be placed on the court system, which is substantial in any event.
	I am grateful to the noble Baroness for bringing to my attention what is stated at present in guidelines. There may be a historical reference to the Lord Chief Justice not being superseded. I need to check that because I am also not clear as to whether they anticipate the position on the transitional arrangements where the Lord Chief Justice may have guidelines which would bite unless and until the new provisions come in. So, there may be that lacuna. However, it seems that it is one of the two. I shall certainly clarify that and write to the noble Baroness.

Baroness Anelay of St Johns: I am grateful to the noble Baroness. She has given clarity. Even though there may not be agreement among the Committee on the Government's objective or on how they are trying to achieve it, as she knows, we agree with much of what the Government are trying to do, but unfortunately—for them not for us—just not all of it. I am grateful to the noble Baroness for taking us further forward. I accept entirely what she said with regard to Amendment No. 209A and indicate now that I shall not return to that on Report. The noble Baroness has given assurances on compatibility with Article 7, which I accept.
	I am intrigued by her explanation about the way in which the SGC guidelines indeed cut across Schedule 17 when they are not specifically aimed at it, but that Schedule 17 would override those issues. Again, I give notice that I shall not return to that on Report. I am grateful to the noble Baroness for saying that she will look at the reference to the Lord Chief Justice to see whether it is necessary for transitional purposes or whether it is just hors de combat. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments No. 210 to 210B not moved.]

Lord Lloyd of Berwick: moved Amendment No. 211:
	Page 147, line 29, leave out subsection (6).

Lord Lloyd of Berwick: In this group of amendments I do not want to say more on the question of whether any of the clauses in this chapter should stand part because they stand or fall with my earlier amendment. Therefore, everything that needs to be said has been said.
	Amendment 211 relates to Clause 254(6) which provides that:
	"The Secretary of State may by order amend Schedule 17".
	My objection to that subsection is twofold. It seems to give back to the Secretary of State very similar powers to those of which he has lost as a result of the decision of the House in the case of Anderson. I feel as certain as I can be of anything that a minimum sentence imposed under Schedule 17 amended pursuant to powers under Clause 254(6) will also be challenged in the courts on the grounds that such powers are inconsistent with the provisions of the Human Rights Act.
	The second ground is similar to the objection advanced—at an earlier stage in relation to Clause 148. It will be remembered that under that clause, the Secretary of State was to have been given power to increase the sentencing limits of magistrates. There was then objection from all sides of the House to which, in the end, the noble Baroness gave way. So, happily, Clause 148 is no longer part of the Bill.
	I say exactly the same about Clause 254(7), which seems to give the Secretary of State very similar powers to those which, as the noble Baroness conceded on the previous occasion, he is not entitled. I beg to move.

Lord Cooke of Thorndon: If I understand the Bill correctly—and I may well not have—I support what the noble and learned Lord, Lord Lloyd of Berwick, said.
	Taken as a whole, the sentencing directions in the Bill are detailed to a degree perhaps unprecedented anywhere else in the English-speaking world. They could certainly hardly be supported by any strict adherent to the separation of powers. Overall, they could be seen—I repeat that I may not have fully understood them—as an approach to a take-over bid by Parliament and the executive of functions naturally belonging to the judicial branch of government. Problems under the European Convention could well arise.
	In all the complexity, I shall concentrate on one point. Schedule 17(8) contains a provision that could be the saving of the legislative scheme. It states:
	"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".
	That appears to introduce a considerable measure of elasticity and enable the particular circumstances of a case to be taken into account. However, in the main provisions of the Bill, Clause 254(6) states:
	"The Secretary of State may by order amend Schedule 17"—
	which is an apparently unfettered and overriding power. I respectfully ask the Minister whether that is, as it appears to be, intended as a avenue for a significant transfer of the judicial function to the executive. If not, why is Clause 254(6) unlimited?

Lord Thomas of Gresford: I do not propose to repeat what I said on the earlier amendment before the break. I wish to ask a series of questions on this group. First, why have the Government chosen to introduce the provisions in Chapter 7 before the Sentencing Guidelines Council has even been created, much less had an opportunity to consider and to advise on the appropriate level of recommendation?
	Secondly, why do the Government seek to ratchet up the minimum sentence? We heard a lot about that from the noble and learned Lord, Lord Ackner, who pointed out that the recommendations are to be ratcheted up by at least 50 per cent.
	Thirdly, why is it necessary to remove judicial discretion at all? We have no degrees of murder in the United Kingdom. There is no distinction in sentencing between a killing where the intention is merely to inflict serious bodily harm as opposed to deliberately taking life. For that reason, one would have thought that the very widest judicial discretion is required in setting minimum terms. Judges recognise human depravity on the one hand, and human weakness on the other. There are many grades in between which they are trained to assess and to consider.
	The imposition of what are effectively degrees of murder, as proposed in the schedule, is arbitrary. There seems no real reason why the murder of a policeman would attract 30 years as the minimum term, whereas the murder of a security guard would attract 15 years as the minimum term. I recall a case where a security guard in Hong Kong was executed by the robbers of a jewellery store. That sort of situation exists in this country. I do not understand why there should be a 15-year difference between two such separate situations.
	Setting out a shopping list of aggravating and mitigating factors, compiled somewhere in the Home Office, is an insult to advocates, who, one would hope, would put forward mitigating factors—and, if prosecuting, aggravating factors—fully before the judge. There is no way in which he will not understand the particular circumstances of a case. Must he go through the checklist in Schedule 17 and give a plus for so much and a minus for something else in working out the appropriate sentence?
	The noble and learned Lord, Lord Cooke, referred to the way in which the doctrine of the separation of powers is impinged upon in the proposals. It is surprising that a politician such as the Home Secretary should take it upon himself to introduce to such a Bill sentencing provisions of the nature that we are discussing, when his experience of courts is probably nil and his experience of the situations that give rise to the sort of cases that come before the courts is almost certainly minimal. Yet he and his department seem to feel that they can impose particular standards on people who have devoted their professional lives to such cases.
	It appears that this is populism and vote-catching; it is not giving to the people of this country the careful and proper lead to which the noble Baroness, Lady Kennedy, drew our attention earlier. The whole purpose of the court system is to dispense even-handed justice between people who have committed crimes, to take away concepts of vengeance and vendetta and to try to return stability to society. Simply reflecting the popular will, which is what these provisions do, is no way to carry out the proper function of a Home Secretary. That is why we on these Benches oppose the whole of Chapter 7 in the way that is set out in these amendments.

Lord Borrie: On the scheme of the Bill, I find a great deal to commend in the way in which the purposes of sentencing are set out in Clause 135 and, if that is approved, those purposes of sentencing are approved by Parliament. Then, the Sentencing Guidelines Council, with its rightly mixed membership—it does not consist entirely of judges—lays down from time to time principles that judges will follow. Thirdly, there is the final independent discretion of the individual judge in the individual case to consider all the circumstances of that particular case over which he presides.
	The real difficulty, however, is where the lines are drawn between each of those three parts of the scheme. We come to what I regard as the real difficulty in Schedule 17. One has to ask whether Parliament, in approving something like Schedule 17, should go down to the level of detail of particularity included in dividing up all the different possible circumstances in which murder is committed.
	I freely draw on points made by a Liberal Democrat in the House of Commons—Mr Simon Hughes, their official spokesman—when he said that "invidious" distinctions are made in Schedule 17 between, for example, the murder of a child and the murder of a disabled person, or, alternatively, between the murder of a police officer on the one hand which is particularised, and the murder of some other equally important official acting in the public interest. That particularity, with which noble Lords may or may not agree depending on how one feels about those circumstances, is in tremendous detail in Schedule 17.
	The point drawn out by the noble and learned Lord, Lord Lloyd of Berwick, on this amendment is that all of that particularity could be approved by Parliament if we agree. It could then—just like that—be amended at any point by the Secretary of State. Therefore, Parliament does not have the control. I am not suggesting that Parliament should have that degree of control over the particular differentiations between one type of murder and another, but certainly the Secretary of State should not.

Baroness Anelay of St Johns: The debate has ranged so widely that it may help the Committee if I introduce amendments on these issues that were in later groups, rather than tax the patience of the Committee by debating separate groups, especially in the light of what the noble Lord, Lord Borrie, has just said. The noble Lord draws our attention to the fact that the Government need to justify the different categories of murder that they have set out. With the leave of the Committee, I will refer to Amendments Nos. 212, 212B, 212C, 212D and 212F. All of those properly come within this particular response. I hope that gives the noble Baroness time to find the relevant parts in her own notes.
	I can be very brief about Amendment No. 212, which is supported by the noble Baroness, Lady Linklater, the noble Earl, Lord Listowel, and the noble Baroness, Lady Stern. It refers in particular to the position of children and young people who are convicted of murder.
	The Children's Society has briefed noble Lords on the matter. In another place, my right honourable friend Oliver Letwin and his colleagues made in clear in their debates on the Bill that we objected in the strongest terms to the inclusion of young people in Schedule 17. The Question whether Schedule 17 shall be agreed to is in the grouping.
	There is a mandatory minimum term on conviction of murder for young people. Amendment No. 212 would ensure that, in cases involving children and young people, the discretion of the trial judge in setting the minimum custodial term in open court was retained under Section 60 of the Criminal Justice and Court Services Act 2000. The amendment would remove persons under the age of 18 from the provisions of Clause 254 and ensure that decisions on the length of detention in cases involving children were based on an assessment of the individual case.
	At Third Reading in another place, the Home Secretary gave an undertaking to review the application of Clause 254 to children. As I mentioned earlier today, the Government offered a meeting on Monday this week about children in general that was, unfortunately, not able to go ahead. I hope that the Minister will give some indication of the Government's further thinking on those issues.
	I move even more directly towards the comments made by the noble Lord, Lord Borrie. The intention of Amendments Nos. 212B to 212E is to probe for the rationale behind the Government's categorisation of the seriousness of offences as "exceptionally" or "particularly" high. Why have some former death penalty offences been, apparently, downgraded from the whole-life tariff? Paragraph 4 lists offences that, the Government say, constitute the most serious murders and, therefore, qualify for the whole-life tariff. Amendment No. 212B would add to the Government's list murders that would, in the past, have been considered to be death penalty offences. Why have they been omitted from paragraph 4? If there is a reason, the Committee and the general public should know what it is.
	Amendments Nos. 212C and 212D are consequential: they simply delete the parts of paragraph 5 that I transferred to paragraph 4 as part of the probing amendment. Amendment No. 212B would also delete paragraph 4. Paragraph 5 imposes a starting point of 30 years, instead of life. Amendment No. 212E would delete paragraph 6, which provides for a starting point of 15 years for all murders not caught by the definitions in paragraphs 4 and 5.
	As other noble Lords have said, we have an odd situation in which the Government are saying, "Although murder is murder, some murders are worse than others, and we will tell you what they are". They have not explained to us why they have decided that particular murders fall into particular categories. Before we take decisions on Report about how we might respond to the Government's proposals in Clause 254 and Schedule 17, we need that explanation. The Government have not yet made a cogent case for subjecting those convicted of murder to the new starting points.
	I have tabled other amendments giving possible solutions to the problems with Schedule 17. It is right, at this stage, that I do not move those amendments. I need to reflect properly on what the noble Baroness says in response to the noble and learned Lord, Lord Lloyd of Berwick, on Schedule 17. The Government have kindly offered a meeting later this week about sentencing, so I will have time to reflect on what the Government say tonight and at the meeting. I can take account of all of that and come back with a new package of amendments on Report, particularly as my first attempt to provide some kind of negotiated peace settlement failed so spectacularly last week, when the noble and learned Lord, Lord Ackner, told me that everything was perfect and there would be no movement at all.

Lord Lloyd of Berwick: First, I apologise for referring to Clause 254(7), which does not exist, instead of Clause 254(6). My amendment is narrowly drawn, but the debate has gone wider. The fact that I have not addressed the wider questions about Schedule 17 does not mean that I approve of it in any way. I do not. I entirely agree with what has been said by Members of the Committee on that point.
	The point on my amendment was put much more clearly by the noble Lord, Lord Borrie, than it was put by me. It is for the reasons which he advanced more clearly than me that I suggest that Clause 254(6) should be left out.

Baroness Walmsley: I should like to add my voice to those already supporting Amendment No. 212, which is aimed at ensuring children under the age of 18 are removed from the provisions of Clause 254 and that it will remain at the discretion of the trial judge to set the minimum term in open court. Section 60 of the Criminal Justice and Court Services Act 2000 makes provision for that. On these Benches, we believe that that should be retained at all costs.
	The starting point is that children should be treated separately and not simply as young adults. If they were, why should we bother with the youth justice system at all? The truth is that in using every criterion of civilised, sensible, informed and humane behaviour within our criminal justice system we recognise that children are not simply small adults. A different system, different criteria, different knowledge and different expertise, with a common humanity, dictates a different approach. This includes the Sentencing Advisory Panel whose advice to the Court of Appeal on minimum terms in murder cases was that Ministers should not set tariffs for juveniles sentenced to detention during Her Majesty's pleasure and that there should be a sliding scale related to age.
	Part of the just and realistic sentencing of children is the recognition that they are, by definition, immature, both emotionally as well as socially and, often, physically as well. Therefore, they will change, mature and develop in a number of crucial ways as they grow up. A 15 year-old is simply not the same person when he is 17 years-old. All of us who have had children know that. Every parent has experienced the change that children go through during their teenage years. Most institutions in our society are predicated on that self-evident fact. Therefore, it seems entirely unreasonable to pass a sentence of 15 years, which is rigid and takes no account of that change.
	Let us think, for example, of the difference between a 15 year-old and a 30 year-old. To inflict such a penalty without being able to take account of such change or development, and its implications for differences in levels of dangerousness, understanding, remorse or contrition and without bothering to take account of notions of forgiveness or redemption, is unacceptable.
	There are very few children who commit murder each year. Their offences are so different that there are no detectable or useful patterns or guidelines which could give a rationale to a blanket approach. All that the children have in common is that they are deeply damaged individuals, usually from deeply damaged families. They are almost always victims, too. That is not an excuse, but it aids understanding of the situation with which we are faced.
	Unless the trial judge can take into account the individual facts of the case and the age of the defendant, he or she will be denied justice. Article 37 of the UN Convention on the Rights of the Child is relevant here, as is Section 44(1) of the Children and Young Persons Act 1933, where it states that the welfare of the child should be paramount. We shall be coming to issues about that later in Committee.
	The Sentencing Advisory Panel's advice to the Court of Appeal was that consideration should be given to the release of the child as soon as it is realistic to do so. As soon as the point has been reached where the child could safely be released, that should not be delayed. That, in turn, depends on the assessment being made in each case. I hope that the promised review of this clause in relation to children has happened and that the Home Secretary and the Minister can reassure us that common sense and humanity about children has prevailed.

The Earl of Listowel: I speak to Amendment No. 212 standing in my name and to illustrate, in another way, what the noble Baroness, Lady Walmsley, said. I recently visited a residential school for children with emotional and behavioural difficulties. The school has an excellent reputation in the field and had just had a highly favourable Ofsted report. The young woman who guided us through the classrooms had been in the habit, when she arrived, of punching out at staff and had broken the glasses of one staff member. Today she is entrusted to show around VIP visitors. A former pupil, a bright young Asian man, hailed the principal from across the lawn. This boy, once so wild, is now managing a BMW dealership. We heard of a deeply troubled girl who had recently returned to visit the school. She is now a grown woman, living with her husband, a steady professional man, and her young children. These individuals had managed to put their emotional and behavioural difficulties behind them; they had changed.
	Children and young people who commit serious crimes are often also themselves vulnerable and poorly developed for their age. The principal of the school explained that swings were provided to be used by the 17 and 18 year-olds in the school. This child's play area was sited out of the view of children not attending the school and reflected the fact that those children and young people who have not had a full childhood need to experience their infancy at whatever age they are permitted to enjoy it.
	On the same visit I enjoyed a game of Pelmanism with two seven year-old girls in the new junior school. Both had long, curly fair hair. They beat me at the game, perhaps because they had had more practice. I hope very much that, with the help of the school, they will be able to get to the root of their behaviour and experience achievement and recognition of that achievement, enabling them to become more at peace with themselves. But if they fail and if, heaven forbid, they harm someone else, I hope that the judge will be free to look at their actions and circumstances as a whole and determine the necessary sentence without undue government interference.
	With regard to Schedule 17, the Minister conceded earlier that the length of custodial sentences for serious offences will increase significantly as a result of the introduction of starting points, as set out in the schedule. What of those who do respond well to rehabilitation and no longer pose a threat to the public? Are they to be kept in prison, unproductive and weighing down the taxpayer, removing resources from other prisoners and perhaps becoming hardened, embittered and irredeemably institutionalised? Only this morning, prison officers at HMP Grendon told me that they had had to remove therapeutic services from lifers and offer them to those who had committed less serious offences because, as I think I understood, of the pressure of prisoner numbers.
	I shall not trouble the Committee any longer at this hour. I look forward to the Minister's response.

Lord Hylton: As a mere layman, I find Schedule 17 deeply undesirable. Be that as it may, however, Clause 254(6) surely confers almost unprecedented powers on the Secretary of State, whether he is minded to make the law more severe or more lenient, whichever way it might fall out. For those reasons, I strongly support the amendment moved by my noble and learned friend Lord Lloyd of Berwick.

Lord Chan: I rise to add a small point which is relevant here. I support all that has been said by the noble Baroness, Lady Walmsley, and by my noble friend Lord Listowel. The younger the offender, the greater is the ability and the potential for change. That should be taken into account.

Baroness Scotland of Asthal: It may be appropriate if I respond first to the amendment tabled by the noble and learned Lord, Lord Lloyd, referring to Clause 254(6). I shall try to deal with that issue as briefly as I can. Perhaps I may say to the noble Lord, Lord Thomas of Gresford, that in speaking to the last group of amendments, I said much that would respond to the comments he has made. At this hour perhaps we may take it as read that I have repeated those words and I shall confine myself to this one issue.
	Of course I understand the concerns that have been expressed by my noble friend Lord Borrie and by the noble and learned Lord, Lord Lloyd, echoed by the noble and learned Lord, Lord Cooke, and the noble Lord, Lord Hylton, that these provisions give the Secretary of State very wide powers. The order-making power—which is what this is—will be subject to the affirmative resolution procedure. Its purpose is to enable the Home Secretary to make amendments as appropriate. The schedule is very detailed. However, we cannot foresee all the mitigating or aggravating factors that may arise in the future that should properly be included. We recognise that there may be a need to respond to new circumstances which we cannot now envisage. Many circumstances have come to the fore in the past five or 10 years which appear to be significant, either by way of mitigation or by way of aggravation, and which should properly be included.
	I hear what my noble friend Lord Borrie and others say about the particularity with which this issue has been looked at, and the comments of the noble Lord, Lord Thomas, about the somewhat mechanistic approach he described. The schedule describes the process that a judge goes through when trying to determine the appropriate sentence. He has to look at the circumstances of the offence, the aggravating features and what is said in mitigation before he arrives at a settled position.
	Many noble Lords will have heard, as I have, of judges going through a similar exercise when determining the nature of sentence and explaining to the defendant and the public the way in which he has arrived at it. The judge will say, "I take into consideration the fact that this was a premeditated offence. I also bear in mind that at the time the victim was a person of tender age and/or mental incapacity", and so on. So, as the judge heads towards sentence, one sees that these are precisely the kind of issues that are expounded. We are not doing anything very unusual.
	The other complaint is that this is micro-management—or, as the noble Lord, Lord Carlisle of Bucklow, would say, that we are teaching our granny to suck eggs. But there is a real issue of continuity, consistency and clarity, and anyone looking at these provisions will know the factors of aggravation and mitigation that have been taken into consideration. That should, we hope, assist in preventing ill informed comment.
	The provisions will be subject to continuing parliamentary scrutiny under the affirmative resolution procedure.

Lord Lloyd of Berwick: I thank the Minister for giving way. Unless I have misunderstood it, Schedule 17 goes much further than setting out the process through which judges already go. Surely it sets out the starting points for particular types of murder—whole life, 15 or 20 years, whatever it may be. Subsection (6) enables the Secretary of State—at the stroke of a pen virtually—to change those starting points. I find that astonishing.

Baroness Scotland of Asthal: Let me make plain that at this moment it is not thought that it will be necessary to utilise this power. However, that is only because we cannot foresee every circumstance that might merit such a change. We know from the past five or 10 years that things do change. It must be right to allow the Home Secretary to bring an appropriate order before both Houses of Parliament and for Parliament to debate the issue and determine whether the proposals put forward by the Home Secretary are sound and acceptable.
	Your Lordships will know, too, that I have said very clearly in dealing with the amendments spoken to before we adjourned that the Government feel very strongly that they should be entitled to express the will of the people and Parliament by setting the framework. The framework is what is included in Schedule 17, setting out, first, the different starting points and, secondly, the mitigating and aggravating circumstances which the court may bear in mind. That, we say, Parliament is entitled to do.
	Let me turn to the amendments in the names of the noble Baroness, Lady Anelay, the noble Earl, Lord Listowel, and the noble Baroness, Lady Walmsley. I come first to Amendment No. 212, which proposes to exclude juveniles from the conditions to which the setting of the minimum term is subject. In fact, because the Bill also repeals the provisions in Section 82 of the Powers of Criminal Courts (Sentencing) Act 2000, which provides for juveniles to be given tariffs by the trial court, the amendment, as it stands, would leave juveniles without any right to receive judicially determined tariffs. I do not believe that that is what the noble Baroness intends.
	I understand that the intention behind the amendment is to exclude juveniles from the application of the new principle. We think it is desirable and necessary to include juveniles in these provisions. It is very rare for murders to be committed by very young juveniles. Since 1998, figures have been kept for juvenile murders, divided into categories of 10 to 11 year-olds, 12 to 14 year-olds and 15 to 17 year-olds. The most recently available statistics show no murders since then by 10 to 11 year-olds, three murders since then by 12 to 14 year-olds and 15 to 17 year-olds committed 78 murders. Those figures show where the balance comes. It is mostly the 15 to 17 year-old age group that we are considering.
	Cases such as the James Bulger killing are, thankfully, very rare. In the case of older juveniles, we do not think it right that there should be a very substantial disconnection around the age of majority. We would be worried, for instance, if the new principles were seen to apply to an 18 year-old, perhaps immature for his age, but not to a 17 year-old, perhaps mature for his age, where they have committed similar crimes.
	We undertook, in another place, to review the principles in relation to juveniles. I am very grateful for all the views that have been expressed today about these matters, and we will be considering them very carefully. Our current thinking is that it is unlikely that we will want to remove juveniles from the framework altogether for the reasons that I have given. We believe that suitable provision can be made for the special needs of this group while including them within the scope of the scheme.
	I was very much looking forward to the meeting which we were all due to have on these matters. I know that we will address these matters again later. I hope that under the circumstances the noble Baroness and noble Lords will feel able to withdraw this amendment. We are looking at this and will listen to what noble Lords have to say before we come to a final view. It would not be right to indicate that we have come to a final view yet because that would not accurately reflect the position.
	Amendment No. 212A would limit the power of the Secretary of State to amend Schedule 17 on future occasions by ensuring that he may do so only where the Sentencing Guidelines Council has issued revised principles. We are not really able to accept the amendment. We believe that murder occupies a special place in the criminal justice system, that the offence is of a very serious nature—the most serious known to our criminal law—and the public rightly expect the authorities to ensure that the arrangements for sentencing for the offence afford adequate punishment for the guilty and adequate public protection.
	I do not want to pre-empt a wider debate on the new scheme, as we shall come to that later. The Government remain fully committed to the continuation of a strong element of democratic accountability in the arrangements of the sentencing of murderers. Parliament is asserting, on behalf of the public, a legitimate role in relation to extremely serious crimes. It has been our concern in framing the principles to ensure that the element of democratic accountability remains.
	I listened with great care to the comments of the noble Lord, Lord Thomas of Gresford. It sounded very much as if he was suggesting that these matters are for lawyers alone, that no one else need worry their heads about them and that, basically, they could be left safely in their hands. He seemed to be saying that, if one has the advantage of having a Home Secretary not burdened with a legal education, he in particular should not interest himself too keenly in these matters. I will say very gently to the noble Lord that his viewpoint is not shared by the general public. They believe that they have a view, and that their views have a right to be listened to and respected.
	The amendment would not meet the need for Parliament to set the framework dealing with murder. An order made under Clause 254(6) is subject to the affirmative resolution procedure. The amendment would give rise to an odd situation: the principles are in primary legislation, and we would not accept that Parliament would need the authorisation of the Sentencing Guidelines Council before setting in legislation other sentencing issues such as maximum penalties and legislation. Parliament is the paramount authority; it would be very unusual for a specialist body such as the Sentencing Guidelines Council to have the final say in the use of Parliament's powers. That is the situation that the amendment would create, but I do not believe that it is what the noble Baroness, Lady Anelay, wants. She wants a discussion, but that is what her amendment would bring about, and I must resist it strenuously.
	I move on to Amendments Nos. 212B, 212C, 212D and 212E, in relation to Schedule 17, to which I believe the noble Baroness, Lady Anelay, referred. The first three amendments would add to the category of murders with the starting point of a whole life tariff. The noble Lord, Lord Kingsland, and the noble Baroness would add the categories of,
	"murder of a police officer or prison officer . . . murder done for gain"
	and,
	"murder intended to obstruct or interfere with the course of justice".
	I understand that the noble Baroness is picking those out to tease out how that will be dealt with.
	We considered those points carefully, and it is a difficult task to weigh the factors that should affect the seriousness of the crime. I am grateful to the noble Baroness for her comments, but we do not believe that the amendments would strike the right balance.
	The Government also regard with complete condemnation and repulsion murders that might be described as committed in cold blood to further a criminal career, and we recognise the need to protect. However, our conclusion was that the very heaviest penalties must bear on those who have committed multiple murders with features of special gravity; who have shown that they are capable of killing children to gratify their instincts; who consider themselves justified in taking others lives to further their ideological beliefs; and who, having previously been in prison for murder, have killed again. We believe that those must be considered the most dangerous and incorrigible offenders. For that reason, we attach the whole life tariff in relation to that category.
	The murders to which the amendments refer will attract a 30-year starting point. That will produce substantially longer tariffs than have often been the case. Leon Brittan, in his 1983 statement on murder tariffs, said that murderers of police officers should serve at least 20 years. In practice, as the noble Baroness and noble Lords will know, that has tended to receive a tariff of between 20 and 25 years. Therefore, setting the starting point at 30 years enables the court to increase that tariff, if it deems that the nature of the offence is so grave. If for some special reason the court believes that the starting point is not appropriate, the court can adjust it as it deems necessary.
	We have provided a very significant increase. I understand what the noble Baroness said about trying to balance putting one offence in one category and another somewhat differently. I hear what my noble friend Lord Borrie said about the making of those decisions being almost invidious. However, we think that it is important to make those decisions because of the need for clarity. I am sure that the Committee will have heard what I have heard on many occasions, particularly since entering my present post in June. I have heard people say that they do not understand how the system operates, what the judge takes into account, how judges make up their minds and why they reach certain decisions which treat the public so poorly. That is what the public appear to be saying. We need to provide clarity. The Government have sought to do that.
	This measure constitutes a framework and a starting point. It is not, as so many have described it, a mandatory imposition of a sentence on a group of offenders who have committed a species of offence. It enables the court to tailor the particular sentence to the particular facts but it gives the court a bracket within which to work.
	Amendment No. 212E would strike out the lowest starting point of 15 years, which will apply to the majority of murders. We believe that there is a clear need to set a lower starting point. For one thing—

Baroness Anelay of St Johns: In my attempt to telegraph my amendments I did not make clear to the Minister the purpose of Amendment No. 212E to which I referred when speaking to the Bill team earlier this week. Its purpose is not suddenly to catapult these people into the higher bracket but to try to tease out why we should not leave that matter to the discretion of the judge. The Minister said that the Government intended the measure to be a framework and a starting point. That makes me think of the words of the noble and learned Lord, Lord Lloyd of Berwick, and his concern that the order-making power that is given so readily to the Secretary of State could mean that the framework and the starting point become totally outwith that which is described to the Committee tonight.

Baroness Scotland of Asthal: I understand that concern. However, as the noble Baroness will see, we have given a great deal of thought to how we should structure the measure. It has not been done lightly. The noble Baroness will know of the intense work that was entered into during the preparation for Halliday and as a result of Halliday. In trying to achieve a statutory structure which gives voice to those different elements, we believe that we have the right framework which draws a balance between parliamentary setting of the boundaries and judicial discretion. We do not envisage the measure being changed easily, but we appreciate that if empirical data and different circumstances result in the matter being re-examined there must be an opportunity for Parliament to have its say.
	I know what is usually said about affirmative resolutions and the affirmative procedure—that you have a choice. You can either strike the measure down or let it go. If I have correctly gauged the flavour of this Chamber on this Bill, I know precisely the course that noble Lords on the Benches opposite and others might take if an order were to come forward with which they did not feel generally content. As for the operation of the affirmative resolution procedure in this setting, I am fairly confident that both Houses would have an opportunity to have their say. I am grateful that the noble Baroness is not seeking to say that the starting point of 15 years is necessarily wrong, simply that she does not want the current or any other Home Secretary to be able to change it without—

Baroness Anelay of St Johns: Again I have not made myself clear enough. I was trying to signal that I have a general unhappiness with the whole setting of mandatory tariffs in the sense we are discussing, if that is not a contradiction in terms. I was trying to be as gentle as I could in pointing out to the Government that perhaps some cases should be left to the discretion of the judiciary.

Baroness Scotland of Asthal: We say that the issues are left to the discretion of the judiciary. I do not have to remind the Committee of paragraph 8 of Schedule 17, which sets out quite clearly that:
	"Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order".
	That gives the widest possible judicial discretion to do justice on the facts of the case, having taken into account the factors set out in the paragraphs that precede it and paragraphs 9 and 10. We would say that the balance was clearly there. I think that I have dealt with all the amendments.

The Earl of Listowel: I thank the noble Baroness for answering most of the questions on the amendment that we asked, but there was one area to which I do not think that she had an opportunity to reply. She has said that the consequences of the proposals will be that persons convicted of serious offences are likely to have longer terms in custody as a result. I hope that I understood that correctly. I am very concerned about that because, as recently as a year ago, guidelines on such sentences were decided on by the Sentencing Advisory Panel. Why the sudden leap in increases in sentences for serious crimes?
	I am particularly concerned when I think of the numbers of such people who have been through the care system—more than 50 per cent, I expect, have had experience of foster or residential care. In at least the case of residential care, those people have been grossly let down over many years. Steps are being taken, but we have an awfully long way to go. Will such people actually be punished and penalised? Of course they have a large element of self-determination, but there is also a large element of societal neglect in their cases. I would appreciate an assurance from the Minister on that.
	I want to express my disappointment that children will be included in the clause. However, I will look at how that works out technically, as the noble Baroness alluded to technical problems that would mean that it was important to include them.

Baroness Scotland of Asthal: In relation to the offences, I am not saying that the tariffs will automatically be higher in all cases. We are saying that the Bill now sets a clear framework. I have tried to describe how the provisions will interact to enable the court to make the right type of decision for the right type of offence. We say very clearly that the expectation will be that, if someone commits a multiple child murder in sadistic circumstances, the expectation for such an offence will be a whole-life tariff.
	On the previous occasion that we debated the matter, I said that there were cases that demanded a whole-life tariff because of their particular seriousness and nature. The noble and learned Lord, Lord Ackner, did not dissent from that, and it is clear that the noble and learned Lords who heard the Myra Hindley case did not either. It is the judgment that was clearly made in the case of Hindley, and there may be very few cases to which the tariff should justly be attached. However, the fact that it should be attached is clear.
	Of course I hear all that the noble Earl says about the numbers of people who have been in care who appear in criminal statistics. Members of the Committee will know that that is why we are working together, right across the piece, with health and all other agencies—inter-governmental and outside agencies—to provide the support and framework that will mitigate the damage caused to and by children who are removed from their homes because of lack of care, neglect or otherwise.
	Noble Lords will know that I share passionately the concerns of the noble Lord about the work that must be done. That does not detract from the fact that some of those children, for whatever reason, then tragically find themselves within the category of persons who are, frankly, dangerous and who have to be cared for in a location of some security until it is safe and satisfactory for them to be released into the public again. The Bill incorporates provisions which would affect the kind of children about whom I speak.

Lord Thomas of Gresford: The noble Baroness refers to the framework for sentencing. I see it as a strait-jacket that is put together by people without hands-on experience of the courts, be they Home Office civil servants or the Home Secretary today who becomes the Foreign Secretary tomorrow. Contrast that with the judges of this country. No experienced judge is appointed to a criminal court nowadays who has not had 25 years of daily attendance at courts, hearing all kinds of offences and dealing with all kinds of people.
	There is flexibility. The noble Baroness referred to changes. There are changes that happen quickly in time, and there are changes between one part of the country and another part of the country. For example, if one looks at recent history, who would have thought two years ago that terrorism of the kind that we are now facing would be such an important part of our lives? Who would have thought 20 years ago that drugs would become such an important part of society's ills? Who would have thought that there would be race riots in some of the cotton towns in Lancashire, or that there would be invasions of rural areas from urban areas in other parts, or terrorism in Wales? All kinds of changes come quickly forward.
	The judge, with his or her experience of the courts and the system, is in a position to take on board changes that are happening all the time—it is a continuous process—and can, as a result, weigh what is, in the particular place and time, an important mitigating factor or an important aggravating factor. Those of us who are experienced in the criminal system all know how from time to time, in various parts of the country, the courts take upon themselves condign punishment of a certain type of offence. That is the kind of role for which courts are designed. Therefore, a strait-jacket from Parliament, from people without experience, must be compared with a flexible system of experienced professionals who know what they are doing. There is no comparison at all.

Lord Lloyd of Berwick: Mine is the first amendment in the group. I hope that the Minister will consider again the order-making power under Clause 254(6), just as she considered again the order-making power under Clause 148 and was eventually persuaded that that order-making power was not justifiable; nor is it justifiable here.
	The Minister protested that the power would not be used very often. We have heard that argument over and over again in recent legislation brought before this Chamber. We have it heard it over and over again from the noble and learned Lord the Attorney-General. It is not an argument which is good enough for the Chamber. If they are sufficiently important, those matters ought to be addressed by primary legislation and not by the order-making power. However, having made that point, and giving notice that I shall want to bring forward the amendment on Report, I beg leave to withdraw.

Amendment, by leave, withdrawn.
	[Amendments Nos. 212 and 212A not moved.]
	Clause 254 agreed to.
	Schedule 17 [Determination of minimum term in relation to mandatory life sentence]:
	[Amendments Nos. 212B to 212E not moved.]
	[Amendment No. 212F had been withdrawn from the Marshalled List.]
	Schedule 17 agreed to.
	Clause 255 agreed to
	Clause 256 [Appeals]:

Baroness Scotland of Asthal: moved Amendment No. 212FA:
	Page 148, line 2, at end insert—
	"(2) In section 8 of the Courts-Martial (Appeals) Act 1968 (c. 20) (right of appeal from court-martial to Courts-Martial Appeal Court) after subsection (1) there is inserted—
	"(1ZA) In subsection (1) above, the reference to a sentence fixed by law does not include a reference to an order made under subsection (2) or (4) of section 254 of the Criminal Justice Act 2003 in relation to a life sentence (as defined in section 262 of that Act) that is fixed by law."."

Baroness Scotland of Asthal: In moving Amendment No. 212FA, I shall speak also to Amendments Nos. 212FA to 212FD, 212HZA to 212HZD and 212HA to 212HG. These are all technical drafting amendments. They arise as a consequence of Clause 262 which interprets the scope of the minimum term provisions as including courts martial. Courts martial have similar powers and disposals to the general criminal courts in England and Wales and are therefore included in the minimum term scheme. Generally, these amendments make the requisite statutory changes for the provision in respect of minimum terms in general, criminal courts to be reflected in courts martial.
	I can give a more detailed explanation but I am sure Members would not wish me to weary the Committee.

On Question, amendment agreed to.
	Clause 256, as amended, agreed to.
	Clause 257 [Review of minimum term on a reference by Attorney General]:

Baroness Scotland of Asthal: moved Amendment No. 212FB:
	Page 148, line 12, at end insert—
	"(2) Each of the following sections (which relate to the review by the Courts-Martial Appeal Court of sentences passed by courts-martial)—
	(a) section 113C of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),
	(b) section 113C of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), and
	(c) section 71AC of the Naval Discipline Act 1957 (c. 53),
	is amended as follows.
	(3) After subsection (3) there is inserted—
	"(3A) Where a reference under this section relates to an order under subsection (2) of section 254 of the Criminal Justice Act 2003 (determination of minimum term in relation to mandatory life sentence), the Courts-Martial Appeal Court shall not, in deciding what order under that section is appropriate for the case, make any allowance for the fact that the person to whom it relates is being sentenced for a second time."."
	On Question, amendment agreed to.
	Clause 257, as amended, agreed to.
	Clause 258 [Life prisoners transferred to England and Wales]:

Baroness Scotland of Asthal: moved Amendments Nos. 212FC and 212FD:
	Page 148, line 15, leave out "a relevant order" and insert "one or more relevant orders"
	Page 148, line 29, leave out from beginning to "an" in line 30 and insert "in the case of an offence which appears to the court to be"
	On Question, amendments agreed to.
	Clause 258, as amended, agreed to.
	Clause 259 [Further provisions about references relating to transferred life prisoners]:

Baroness Anelay of St Johns: moved Amendment No. 212G:
	Page 148, line 40, leave out subsection (1).

Baroness Anelay of St Johns: In moving Amendment No. 212G, I shall speak also to Amendment No. 212H. Clause 258 makes provision for the courts in England and Wales to determine the minimum terms for offenders who have been convicted of murder outside the United Kingdom and the other British islands and who consent to be transferred to serve their sentence in England and Wales. Clause 259 sets out the procedure for making such a determination. These two probing amendments seek clarification of that procedure.
	First, in relation to subsection (1), I would be grateful if the Minister could explain why the determination is to be made without an oral hearing. Secondly, will she explain the purpose of the order-making power in subsection (7), which at first glance seems to be very wide indeed—particularly as the Committee has just debated its concerns about wide order-making powers. Why do the Government need this one too? I beg to move.

Baroness Scotland of Asthal: I hope that I can give the noble Baroness the explanation that she seeks. The legislation provides for a determination of tariff to be made on the papers by the High Court, and there is provision for an offender to appeal against that decision. We are alive to the implications of the Easterbrook judgment, and believe that our arrangements are compatible with Article 6—on appeal it will be possible for the offender to have an oral hearing. That applies to transitional cases and to transferred-in prisoners.
	Given the practical situation, we believe there is fairness and common sense in the proposal to make tariff determinations on the papers. Around 600 prisoners who have been convicted have not yet received a tariff. To process all those on the basis of an oral hearing would take a very long time. There should not be undue delay in giving those prisoners a decision on what their tariff will be. Once a determination is given, that minimum term will not be raised on an appeal by the offender, although, of course, that could happen on an appeal against an unduly lenient sentence by the Attorney-General.
	The clause struck out by the second amendment is a precedented provision. It appears in Sections 89 and 90 of the Proceeds of Crime Act, and it was used there for the same reason that we are proposing it now. It is a general rule-making power to set up procedures for appeals, and it prevents the need to make complicated amendments to the Criminal Appeal Act 1968.
	I cannot yet give fuller details to the noble Baroness of what procedures might be proposed for these determinations and appeals. Officials are working with colleagues in the Lord Chief Justice's office to develop procedures that will deal with these issues fairly and expeditiously. I hope that, with that reassurance, the noble Baroness will feel content.

Baroness Anelay of St Johns: I thank the noble Baroness for her reassurances, which I accept. I shall not return to these matters on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 212H not moved.]
	Clause 259 agreed to.
	Clause 260 [Duty to release certain life prisoners]:

Baroness Scotland of Asthal: moved Amendments Nos. 212HZA and 212HZB:
	Page 149, leave out lines 22 to 27 and insert—
	"(1A) This section applies to a life prisoner in respect of whom a minimum term order has been made; and any reference in this section to the relevant part of such a prisoner's sentence is a reference to the part of the sentence specified in the order." Page 149, line 28, after "(1B)(a)" insert—
	"(a) for the words from the beginning to "applies" there is substituted "this section does not apply to him", and
	(b)"
	On Question, amendments agreed to.
	Clause 260, as amended, agreed to.
	Clause 261 agreed to.
	Schedule 18 [Mandatory life sentences: transitional cases]:

Baroness Scotland of Asthal: moved Amendments Nos. 212HZC to 212HG:
	Page 267, line 10, leave out "a mandatory life sentence" and insert "one or more mandatory life sentences"
	Page 267, line 11, at end insert "(whether or not he is also serving any other sentence)"
	Page 267, leave out lines 12 to 14 and insert—
	""life sentence" means a sentence of imprisonment for life or custody for life passed in England and Wales or by a court-martial outside England and Wales; "mandatory life sentence" means a life sentence passed in circumstances where the sentence was fixed by law."
	Page 267, line 16, after "who" insert "in respect of any mandatory life sentence"
	Page 267, line 23, after "must" insert "in relation to the mandatory life sentence"
	Page 267, line 33, after "prisoner" insert "in respect of the sentence"
	Page 268, line 20, after "who" insert "in respect of any mandatory life sentence"
	Page 268, line 25, at end insert "in relation to the mandatory life sentence"
	Page 270, line 13, leave out paragraph 16 and insert—
	"16 (1) In relation to an existing prisoner, section 28 of the Crime (Sentences) Act 1997 (c. 43) has effect subject to the following modifications.
	(2) Any reference to a life prisoner in respect of whom a minimum term order has been made includes a reference to—
	(a) an existing prisoner in respect of whom an order under paragraph 3(1)(a) has been made, and
	(b) an existing prisoner serving a sentence in respect of which paragraph 3(3) applies.
	(3) Any reference to the relevant part of the sentence is to be read—
	(a) in relation to a sentence in respect of which an order under paragraph 3(1)(a) has been made, as a reference to the part specified in the order, and
	(b) in relation to a sentence in respect of which paragraph 3(3) applies, as a reference to the notified minimum term as defined by paragraph 3(4).
	(4) In subsection (1B) (life prisoner serving two or more sentences), paragraph (a) is to be read as if it referred to each of the sentences being one—
	(a) in respect of which a minimum term order or an order under paragraph 3(1)(a) has been made, or
	(b) in respect of which paragraph 3(3) applies.
	16A In section 34(1) of the Crime (Sentences) Act 1997 (c. 43) (interpretation of Chapter 2 of that Act), in the definition of "life prisoner", the reference to a transferred prisoner as defined by section 258 of this Act includes a reference to an existing prisoner who immediately before the commencement date is a transferred life prisoner for the purposes of section 33 of that Act."
	On Question, amendments agreed to.
	Schedule 18, as amended, agreed to.
	Clause 262 agreed to.

Baroness Anelay of St Johns: moved Amendment No. 212J:
	Before Clause 263, insert the following new clause—
	"REVIEW OF UNDULY LENIENT SENTENCES (INDECENT PHOTOGRAPHS OF CHILDREN)
	Part IV of the Criminal Justice Act 1988 (c. 33) (reviews of sentencing) shall apply to any case in which sentence is passed on a person for any of the following offences—
	(a) offences under the Protection of Children Act 1978 (c. 37);
	(b) offences under Article 3 of the Protection of Children (Northern Ireland) Order 1978 (indecent photographs of children);
	(c) offences under section 160 of the Criminal Justice Act 1988 (c. 33) (possession of indecent photograph of child);
	(d) offences under Article 15 of the Criminal Justice (Evidence, etc.) (Northern Ireland) Order 1988 (possession of indecent photograph of child);
	(e) attempting to commit, or inciting the commission of, any of the offences described in paragraphs (a) to (d)."

Baroness Anelay of St Johns: In moving Amendment No. 212J, I shall speak also to Amendments Nos. 252A and 257A. The amendments would apply to child pornography offences the powers available to the Attorney-General under the provisions of the Criminal Justice Act 1988 to apply to the Court of Appeal for the review of unduly lenient sentences. The amendments would extend to England, Wales and Northern Ireland, and Amendment No. 252A would ensure that the new powers came into force 14 days after Royal Assent.
	Three years ago in the Criminal Justice and Court Services Act 2000, Parliament raised the maximum sentence for possession of indecent photographs of children from six months' to five years' imprisonment and the maximum for taking, making or distributing such photographs from three years' to 10 years' imprisonment. Those changes had full cross-party support. They were a response to the huge increase in the trade in child pornography that unhappily has accompanied the technological advances made in recent years—in particular, with the arrival of the Internet.
	The Criminal Division of the Court of Appeal issued a guideline judgment in the case of R v Oliver at the end of last year giving guidance to sentencing judges on the length of sentences to be imposed for these offences using five levels of seriousness to describe the images involved. However, noble Lords will be aware that in many cases offenders who have committed many serious offences are, indeed, still receiving what appear to be lenient sentences. I could give examples but at this late hour shall desist.
	My amendments would allow the noble and learned Lord the Attorney-General to apply for unduly lenient sentences in such cases to be reviewed by the Court of Appeal. The question arises as to why these very serious offences are not already included within the scope of the powers to which I have referred. Perhaps it may be simply that when Parliament enacted the powers in Part IV of the 1988 Act, the fact that the maximum sentences for the two classes of offence were six months and three years respectively meant that it was considered then that there was very little possibility of persuading the Court of Appeal that a sentence within the available range was not merely lenient but unduly so due to the relatively limited sentencing powers of the Crown Court at that time.
	The position has now changed. The maximum sentence for possession is now nine times what it was in 1988. The maximum sentence for taking, making or distributing is more than three times higher. The range available to sentencing judges and to the Court of Appeal is much broader and in many cases non-custodial sentences are, I am told, being imposed for very serious offences indeed despite that increase in the maximum penalty.
	We have talked much today about what is of interest to the public. It is very clear that these matters are of great concern to the public. Surely, those who contribute to the abuse of children by making and possessing these images should face prosecution and be punished severely. I believe that the amendment would put the Attorney-General in a better position, one which he should find to his advantage and to the advantage of the public. I beg to move.

Lord Goldsmith: I start by saying something which I am sure will be readily accepted, but which is important to say. On these Benches we share the abhorrence referred to by the noble Baroness, Lady Anelay, at the conduct to which these offences refer. Children deserve and will receive this Government's continuing protection. That is why, as the noble Baroness said, with cross-party support the maximum sentence for these offences was significantly increased in the Criminal Justice and Court Services Act 2000. Should it be the case, or should it appear to be the case, that further measures are necessary to suppress this mischief, we shall not shrink from taking them.
	As the noble Baroness said, the increase for the particular offences in terms of maximum penalty was substantial: from three to 10 years' imprisonment and from six months' to five years' imprisonment respectively for the two offences. The offence which previously had been a summary only offence became one triable on indictment. As the noble Baroness also said, since those higher maximum penalties came into effect in January 2001, there has been the important guideline judgment on sentencing by the Court of Appeal in the case of R v Oliver, Hartree and Baldwin. That set out the sentencing guidelines for the offences taking into account the revised maxima which had been introduced.
	The guidelines will be very helpful in ensuring that the courts are clear on what is expected of them when it comes to sentencing for this kind of offence.
	It is perhaps not generally known that although the unduly lenient sentence power provides an opportunity for me, on behalf of the public, to propose public policy considerations to the Court of Appeal when it is setting sentence guidelines or frameworks, that is not the only opportunity that I have. Following a particular guideline case, I agreed—at his request—with the Lord Chief Justice to provide counsel instructed by me to put forward public policy considerations in cases where, although there was no unduly lenient sentence application, there was a desire by the Court of Appeal to set a general guideline. That happened in relation to dangerous driving offences in the case of Cooksley.
	So that is an opportunity to assist in setting sentences appropriate for the offence, taking into account public concerns when the Court of Appeal comes to do its job. That guideline judgment was delivered only late last year. So far, we have no formal statistical evidence about the overall pattern of sentencing in such offences since that case, but we have no reason to believe that the sentencing for those offences since then is especially lenient. It is perfectly possible—this frequently happens—that it is taking a little time for guidelines from the Court of Appeal to have full effect in the lower courts. But prosecutors who have been consulted are not aware and have no concern that the increased sentencing powers are being exercised inappropriately by the courts.
	So it has not seemed to the Government that there is any case for adding those offences to the unduly lenient sentence scheme. Of course, it is possible for the Secretary of State to do so by means of secondary legislation, so the present amendment is by no means the only opportunity at which the matter can be considered; and we can keep it under review.
	I turn to what may be a slightly delicate matter for me to raise in this context, which is the question of the additional burden that adding to the powers puts on me and my deputy. The way in which such cases are dealt with involves not just advice for the prosecuting counsel who has been involved and the local CPS, not just independent advice from independent Treasury counsel, which we always have commissioned; the matter is also considered in my office.
	Ultimately, every decision to refer a sentence as unduly lenient involves the personal consideration of the Attorney-General—myself—or of my deputy, the Solicitor-General. Adding additional categories of cases to those which we can refer risks adding a burden to the work that is put on us, but also on the Court of Appeal. The Court of Appeal from time to time expresses concern about the burden on it. It takes each case referred by me seriously: it wants to ensure that they are properly considered, which means that a Court of Appeal must be set up.

Baroness Blatch: Does not the noble and learned Lord agree that if it is felt that an unduly lenient sentence has been awarded in the case of the three offences set out by my noble friend, the burden on the Attorney-General—indeed, on any part of the system—should not be an argument against my noble friend's amendment?

Lord Goldsmith: I entirely agree that the burden on me is completely irrelevant. The burden on the Court of Appeal is a different matter. The Court of Appeal has a heavy job of dealing with cases: appeals against sentence; appeals against conviction. The more cases that are put in to the system on the resources given to the Court of Appeal, the slower justice may be for many.
	One must balance those with the degree of concern that exists and the degree of need to refer particular categories of cases. The unduly lenient sentence power does not apply to anything like the majority of offences that can be tried or sentences passed. That is why I started by emphasising the Government's view—particularly given the increase in the sentence agreed and passed in the light of the guideline judgment provided by the Court of Appeal—that there does not appear to be a need to add these offences to the existing categories of cases that can be referred.
	That points to the fact that further offences should be added only where there is a proven need to do so. That is why I referred to the question of the burden on all involved. There are many offences that one might desire to add to the existing scheme—indeed, many have been mentioned in the Committee—but there is no apparent need to add those offences at present.
	We will monitor closely the operation of the increased sentencing powers for those offences. We will not hesitate to take action if a need to do so becomes apparent. That does not depend upon primary legislation, because there is an existing power under which it can be done by the Secretary of State through secondary legislation, as has been done on previous occasions. Those are the reasons for the Government's view that this is not the right moment to add the offences to the scheme. I invite the noble Baroness not to press the amendments.

Baroness O'Cathain: The noble and learned Lord seems to think that there is some merit in the approach and to realise the reasoning behind it, but he says that now is not the time. Does he think that things will get worse? When will be the time? Having listened to the noble and learned Lord very carefully, I get the strong impression that he feels there is a lot of merit in the approach. Why can he not adopt it now?

Lord Goldsmith: There is a balance. When the important power to refer unduly lenient sentences to the Court of Appeal was introduced, it was thought that very few cases would be referred. The Committee may recall that the power was introduced at the time of the Ealing vicarage rape, which is what caused its creation. Before then, we had no ability to ask the Court of Appeal to review a sentence.
	The jurisdiction has grown. Very important cases have been referred. I mentioned dangerous driving, and I have personally argued cases relating to child sex abuse, rape and gun crime. They provide an opportunity to take important issues to the Court of Appeal. But there is always a balance to be struck as regards which offences to include. A general right of appeal on every sentence would result in a considerable burden. I do not say that it is an issue for me, but it would be an issue for the courts system and others who must deal with it.
	There has been a significant increase in the maximum sentence, and the Court of Appeal has laid down clear guidance for the lower courts to follow. I do not understand there to be any criticism of that guidance. If it is followed, the result will be appropriately tough sentences for this very serious crime and there will be no need to refer cases to the Court of Appeal as unduly lenient. That is the reason for it. It is intended to strike a balance between cases where there is a prudent need to add at this stage and those where there is not.

Lord Thomas of Gresford: The noble and learned Lord has described well the system whereby advice comes from the prosecutor, through the CPS, who takes professional advice on sentence levels and argues the case before the Court of Appeal. Does the noble and learned Lord the Attorney-General ever go to Parliament to ask Members of Parliament for their views or to the Home Secretary to ask him what he thinks he should do, or is the matter just left to the professionals?

Lord Goldsmith: Why do I think that I have now returned to a previous group of amendments? The category of power that is used is a particular one. In the vast majority of cases with which I am concerned, I am aware from previous cases what the appropriate tariffs are. However, there are occasions on which it is appropriate to examine other considerations. When I ask instructed counsel to argue about the tariffs in relation to dangerous driving, for example, it is appropriate to understand what the statistics are, what are the concerns from government departments relating to the levels of crime and deaths on our roads, and what are the views of the public. Yes, there are parliamentarians who have expressed strong views about those issues as well, which it would be appropriate to take into account when considering how to address the Court of Appeal about the appropriate sentences to be passed.

Lord Thomas of Gresford: Will the noble and learned Lord tell us whether it is the views of the MPs, the newspapers and the Home Secretary that prevail or his own view—the professional view that he takes, having regard to previous cases and guideline cases in the past?

Lord Goldsmith: I hope that the noble Lord will forgive me, but this is plainly a debate about another amendment. The amendment to which I have been asked to respond is a very proper and important proposal in relation to a particularly serious crime. The Government are being asked to consider whether to add it to the unduly lenient sentence power. It is not right to hijack that important debate by returning to matters that the noble Lord has debated at some length with my noble friend Lady Scotland.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord the Attorney-General for his careful response. He started by saying that he shares our abhorrence of the conduct of people that results in the sentences we are discussing. I entirely accept that: he has made that clear throughout his distinguished career at the Bar as well. However, he says that, although he has some sympathy with the amendment, the time is not right or that there is no evidence to prove that this power of referral is needed. I am intrigued by that because in one breath the noble and learned Lord says, "The power is not needed. There is no evidence, so it won't happen", and in the next breath says, "Of course, we shouldn't mention this but were the power to be there we might end up with the Court of Appeal being over-burdened because of work". That argument does not work both ways.

Lord Goldsmith: I am obliged to the noble Baroness. I have been taken to task for referring to personal burdens so I am very anxious not to mention the point too much. I will talk about myself instead. I receive a large number of requests to consider references, many of which are not sent to the Court of Appeal at all because I do not think that they are appropriate. They come from prosecutors but also from members of the public. If we expand the category of the offence, all cases will receive applications. Each has to be carefully considered and each has a resource implication attached. Even in cases that are not sent, there is a burden.

Baroness Anelay of St Johns: Some burdens are worth it and child-protection is one. I wish to test the opinion of House.

On Question, Whether the said amendment (No. 212J) shall be agreed to?
	Their Lordships divided: Contents, 24; Not-Contents, 39.

Resolved in the negative, and amendment disagreed to accordingly.

Business of the House

The Countess of Mar: The guidance in the Standing Orders states that it is a firm convention that the House should adjourn at 10 o'clock. Given the effects on the Hansard writers, bar staff and other staff working in the House, may I ask the Chief Whip what time it is intended that the House should resume?

Lord Grocott: Your Lordships will know that it was signalled in the business for this week that we would sit late tonight. It is also well known that the advice for the House to rise at 10 o'clock set out in the Companion is not an iron rule for the precise reason that we need to have flexibility. I think that that is understood on all sides.
	Tonight it is intended to move as rapidly as we can to the end of Part 12. I am hopeful that we shall be able to achieve that and I shall resume my place as quickly as possible. However, one must learn to be flexible in this job because one has responsibility without power.

Lord Cope of Berkeley: I fully accept that the rising time of 10 o'clock is a convention and not a firm rule of our Standing Orders. At the same time, however, noble Lords know that that convention has been broken extremely frequently, in particular over recent weeks. We sat until midnight last night and, if we are to achieve the target just suggested by the Captain of the Gentlemen-at-Arms, then we shall sit until at least that time tonight. I think that it is extremely unsatisfactory for both Members and the staff that we should so frequently break the rule.
	This particular Bill is enormous, covering two volumes. What is more, it has a large number of government amendments to it. I accept that some of those take on points that were suggested by the Opposition or by outside comment, but some are wholly the result of the Government rewriting their own Bill, having rethought it since it was originally introduced.
	So far the Bill has been considered for seven-and-a-half days, but given that it is such a large Bill, it deserves more time than it has been allocated. Furthermore, if, as rumour suggests, it is to be seriously altered even further by the addition of new material at the Report stage, then the time presently allocated to it will not be sufficient.
	I have made these points to the Government on other occasions, but it is right to share them with the Committee at this stage of our deliberations and at this time of night.

Lord Shutt of Greetland: I am not convinced that the work of the House is at its best at 12 minutes past 11 o'clock, but word has been given about our business tonight; as that word has been given, it had better be kept. Nevertheless, working into the early hours is not a good way of doing business and I hope that it will not be repeated on subsequent occasions.

Earl Russell: Convention is a two-way street. What the noble Countess said is true, and what the noble Lord, Lord Grocott, said is also true. If the Government wish the House to rise earlier, that creates an obligation to introduce business whose bulk is proportionate to the number of hours allocated to its consideration,
	In that context, may I ask the Minister how many Bills originating from the Home Office have been placed before this Session of Parliament, and how many pages those Bills add up to? If the noble Lord, Lord Grocott, is not instantly provided with the answer, I think it should be put down for Written Answer because that information should be made available to the House.

The Earl of Northesk: I wish to intervene briefly and I apologise to the Government Chief Whip; I know that he wants to get on with the business. There is a serious issue here and I wish to make a simple point. In my life in this House, I talk to everyone and I have to say to the Government Front Bench that the staff are utterly fed up with being given a perception of when the House is going to rise, and then finding that that perception has been taken away. The Government really do have to get a grip on this issue.

Lord Grocott: In response to the last point, I make every possible effort to ensure that the people who serve us so well in this House are kept informed at all stages. I regard that as one of my principal functions and responsibilities. So far as it is within my power—which is incredibly limited—to know how long it will take to deal with groups of amendments, I keep everyone informed as much as it is within my capacity to do so.
	I do not have to hand the precise answer to how many pages and clauses have been in Home Office Bills in this Session. However, what I do have reserved for emergencies in the back of my brain is the size of this Session's programme in comparison with other Sessions, and it is not excessive.
	This really is not the time for this debate. I have debated the issue with the noble Lord, Lord Cope, on many occasions through the usual channels. The remedy is within the House's hands. I shall let your Lordships into a secret: I do not like staying here until one or two o'clock in the morning. I should like to rise much earlier than 10 o'clock. I do not believe we can give legislation effective scrutiny sitting late at night. The remedy is within the hands of the House and it is very simple: there should be agreement that the overwhelming majority of Bills should be considered in Committee. However, they should be considered in a committee as it is understood in every other organisation—legislative or otherwise—of which I have had experience; a committee which does not consist of the whole parent organisation in its normal form.
	If two more Bills of moderate size had gone to Grand Committee in this Session, we would have risen easily by 10 o'clock on any occasion we needed to. What is more, we might have had slightly longer recesses. Believe me, that is something which not only I would vote for, but which the two trade unions of which I am honoured to be a member are strongly in favour that their members should vote for.

Lord Cope of Berkeley: But the Chief Whip will also acknowledge that far more Bills have gone to Grand Committee this year than in any previous Session. That was a part of the deal which led to the 10 o'clock arrangement, the 7 o'clock on Thursday arrangement and the whole package. The agreement about sending Bills to a Grand Committee has been kept, over and above what was agreed at the time.

The Earl of Onslow: I have been in the House for 33 years. What seems to have happened is that although there may not have been any more business this year, yet again the end of the Session is getting fuller and fuller and the beginning emptier and emptier. There is nothing new in that. When we were in power, noble Lords opposite moaned quite a lot about a similar subject.
	But it seems to have got worse. The reason for that is that we are not having the State Opening until 26th November, which is phenomenally late in my experience. The concentration at the end of the Session has got much worse, and it is that which is causing the problem, not necessarily the number of Bills before us. That is the Government's fault. It is not the fault of the Opposition and other Members of your Lordships' House, who are trying to do the job that they come to this splendid place to do.

The Earl of Northesk: I would welcome some response to the observation I made. Notwithstanding the obligation of the House to get government business through—I understand that that is our responsibility—I beg the Government Front Bench to realise that that can happen only under circumstances where you treat the staff of the House fairly. If you tell them there is an expectation that they will be going home at 10 o'clock, and then consistently break that rule, you betray your contract with them. If you want to live that way as employers, fine, but it is wrong.

Lord Tordoff: My Lords, I would like to press the point that my noble friend Lord Russell has made. It seems to me that the problem is not so much that we are getting more Bills but that the Bills are getting bigger. They are now three Bills in one. It is not unusual for Bills to run to 300 or 400 clauses. That is the difference between what is happening now and what happened 10, 15 or 20 years ago. That is what is taking the time of this House. The Chief Whip needs somehow to feed back through the Government's system the fact that we will deal with Bills for as long as it is necessary to deal with them properly but, for heaven's sake, can we have one Bill at a time and not three in one all the time?

The Countess of Mar: My Lords, I am grateful for the Chief Whip's response to my initial question to him. The whole House was asked to vote on the 10 o'clock adjournment, and we agreed to the 10 o'clock adjournment. The agreement that we continue beyond the 10 o'clock adjournment seems to have been between the Front Benches. There has been no consultation whatever with the Back Benches. I think that I voice the opinion of many Back-Benchers—and perhaps some Front-Benchers—who are deeply unhappy with this.
	I echo what the noble Earl, Lord Northesk, has said about the provision of staffing, particularly the Hansard writers; they have to find a Hansard writer every 10 minutes. It is extremely difficult for them if they do not know what time the House is going to adjourn. Many of the Bar staff have families and children; they are expected to provide service here and to care for their children and families at home. This is unreasonable, in view of the fact that it is a Standing Order that the House do adjourn at 10 o'clock.
	It is a firm convention, but what is a firm convention if it is not firm? We have overridden it time and time again. This is the third time that I have got up in your Lordships' House: the first time I moved the amendment, and I have asked twice what time it is intended that the House do adjourn. I gather that tonight we are expected to go on into tomorrow morning, until 2 o'clock. This is unreasonable, and it is unreasonable to expect us to do our business efficiently at such an hour.

Baroness Gibson of Market Rasen: My Lords, I was not going to speak in this debate because I am very new to the House in relation to many of your Lordships, having been here only three years. However, I am finding this debate rather strange.
	I joined the House in May 2000; between May and when we broke up in July, I do not think there was any evening when I went home before 10 o'clock, and this was long before any agreement had been reached about not going beyond 10 o'clock. I remember that once we went right through the night, until 7 o'clock in the morning, and even had to pay for our breakfast. A beautiful cooked breakfast was provided but I thought having to pay about #5 for it was a bit thick, considering that we had done many hours' work. If I were still in industry, I would have objected very strongly.
	I absolutely agree with the noble Lord, with whom I have not had the pleasure of discussing this previously. I believe that we have to be fair to staff in the House. But there is no difference to the situation that prevailed before we decided we would leave at 10 o'clock.

The Countess of Mar: My Lords, may I interrupt the noble Baroness? There has been a vote in the House that we do adjourn at 10 o'clock—that is the difference.

Baroness Gibson of Market Rasen: My Lords, the difference also was, as I understood it—I may be wrong and I am sure the Chief Whip will tell me if I am—that this was not written in stone. It was explained to all of us at that time that there might be occasions on which we would have to stay longer. I agree with the noble Lord who said that the Bills are long—I have moaned about that to the Chief Whip. But I think we are getting this a little out of proportion. We should get on with debating the Criminal Justice Bill now and then have the debate about the hours another time.

Criminal Justice Bill

Baroness Blatch: moved Amendment No. 212K:
	Before Clause 263, insert the following new clause—
	"CONVICTED CHILD SE" OFFENDERS: DISQUALIFICATION FROM WORKING WITH CHILDREN
	(1) The following is inserted after section 29 of the Criminal Justice and Court Services Act 2000 (c. 43) (disqualification from working with children: juveniles)—
	"29A DISQUALIFICATION FROM WORKING WITH CHILDREN: CHILD SE" OFFENDERS
	(1) This section applies where an individual—
	(a) is convicted of an offence against a child, and
	(b) in consequence of the conviction for that offence he is ordered by any court to be subject to the notification requirements of Part 1 of the Sex Offenders Act 1997 (c. 51).
	(2) Where this section applies, the court must order the individual to be disqualified from working with children."
	(2) In section 30 of the Criminal Justice and Court Services Act 2000 (c. 43) (sections 28 and 29: supplemental) after the words "section 28 and 29" there is inserted "29A".
	(3) In section 33 of the Criminal Justice and Court Services Act 2000 (c. 43) (conditions for application under section 32) after subsection (2) there is inserted—
	"(3) In relation to a disqualification order made under section 29A, as if the order were a sentence passed on him for the offence of which he has been convicted.""

Baroness Blatch: In speaking to the amendment, I shall also speak to Amendments Nos. 212L and 212M. All three amendments stand in my name and in the name of my noble friend Lady O'Cathain.
	The amendments relate to the system of disqualification orders put in place by the Criminal Justice and Court Services Act 2000. These orders disqualify offenders from working with children for life if they have committed certain sexual or violent offences against children and have been sentenced to 12 months' imprisonment, or more. The imposition of a disqualification order is mandatory in such cases unless the court states that it is of the opinion that it is unlikely that the offender will commit further offences against children. Breach of the disqualification order by working, or attempting to work with children, is a criminal offence punishable by imprisonment.
	When that legislation was scrutinised by this Chamber, I made it clear from the Opposition Front Bench that we believed that the scheme set out in the Act could be improved. I am sure that the Minister and those who advise her will have read the debates in this Chamber on 4th and 8th October 2000, on amendments very similar to those before the Committee today. I shall therefore merely outline the effect of the amendments rather than repeat at length the arguments that I put forward three years ago, which are already on the official Hansard record.
	Amendment No. 212K would provide that all those convicted of sexual offences against children should be disqualified from working with children, regardless of the penalty received. At present, such offenders are disqualified only if they are sentenced to 12 months' imprisonment, or more. However, I am concerned about those who commit sexual offences against children but do not receive a sentence of 12 months.
	In the debate on the Criminal Justice and Court Services Bill on 4th October 2000, I said:
	"One has to think only of the awful crimes committed by Gary Glitter, who traded in child pornography. He received a sentence of less than 12 months and, because of that, he did not fall into the category of qualifying for a disqualification order".—[Official Report, 4/10/2000; col. 1530.]
	That concern remains. As my noble friend Lady Anelay highlighted in the previous debate, one still hears almost daily of offenders receiving non-custodial sentences or very short prison terms of less than 12 months for child pornography offences and other sexual offences against children. Such people are clearly unsuitable ever to work with children, but they cannot be sentenced to disqualification orders.
	Three years ago, the noble Lord, Lord Bassam, responding for the Government, said:
	"I appreciate the arguments she is putting forward . . . this is an issue which we may wish to revisit at a later stage, perhaps when we see the scheme and system properly kick in . . . There will be scope for further review".—[Official Report, 4/10/2000; col. 1531.]
	The amendment gives noble Lords the opportunity to revisit the issue referred to by the noble Lord, Lord Bassam, three years ago.
	Amendment No. 212M is closely related to Amendment No. 212K. It would provide for the automatic disqualification of any offender convicted of an offence against a child and sentenced to imprisonment. In other words, it would remove the 12-month threshold currently in legislation. I moved a similar amendment in this Chamber on 31st October 2000, and I adopt the same arguments that I advanced on that occasion. The late Lord Williams of Mostyn responded for the Government. In resisting my amendment, he deployed the same arguments as had the noble Lord, Lord Bassam, four days earlier. In a characteristically generous response, he said:
	"I give the undertaking . . . that we should want to keep the operation of the scheme under close review. For my own part, I should have thought that after 18 months or two years . . . we ought to revisit this matter. I hope that the undertaking that I have given is helpful to the noble Baroness. It is certainly intended to be. On that basis, I invite her to not to press her amendment".—[Official Report, 31/10/2000; col. 876.]
	On that basis I withdrew my amendment. On the same basis I now invite the Minister to say what has become of the Government's reconsideration of this matter.
	It really is nonsensical to say that a person convicted of a sexual or violent offence against a child and sentenced to 12 months in prison should be disqualified from working with children for life but that someone convicted of the same offence against a child which is serious enough for them to be sentenced to three, six, nine or 11 months should be free to become a primary school teacher, a social worker or a youth group leader. That is what the statute says at present. The Government indicated in 2000 that they would review its operation in the future. I very much hope that they will start by accepting my Amendments Nos. 212K and 212M.
	My Amendment No. 212L is designed to ensure that the Government have considered the possibility of magistrates' courts imposing disqualification orders. The Bill increases magistrates' sentencing powers to a maximum of 12 months, which means they could pass a sentence on an offender which should under the current law mean that the offender should be disqualified from working with children. However, the definition of "senior court" in the 2000 Act—the type of court empowered to impose a disqualification order—does not include a magistrates' court. Do the Government intend to give magistrates' courts the power to impose disqualification orders on offenders who commit offences against children and who are sentenced to 12 months by the magistrates? If not, how will such offenders be disqualified from working with children?
	Finally, I should like to draw the attention of the Committee and the Government to a matter directly related to these amendments. It has only just come to my attention but it is of the utmost concern and gravity. I am informed that during the course of argument in the Court of Appeal last Friday in a high-profile case involving a sentence on a child sex offender referred to the court by the Attorney-General as being unduly lenient, Lord Justice Kay made it clear in open court that he was greatly concerned at the fact that some sentencing judges in the Crown Court were not complying with the provisions of the 2000 Act by making disqualification orders on offenders on whom they ought to be made. The learned Lord Justice referred to the fact that some trial judges may believe wrongly that they are able to make those orders only against those who have been convicted of an offence against a child committed when they were actually involved in working with children.
	Lord Justice Kay has done the Committee and the public a great service in raising this matter and in making the remarks that he did from the Bench. If what he said is correct—and I have no reason to doubt it—it is truly an astonishing revelation. Something has clearly gone very seriously wrong indeed in the court system if, three years after they came into force, trial judges are under such an astonishing misapprehension about the nature of the disqualification provisions which impose an absolute duty on the court to disqualify from working with children all those convicted of the relevant offences set out in the Act and sentenced to 12 months or more in whatever circumstances. Something has also gone seriously wrong if the Crown Prosecution Service and the advocates who appear in the criminal courts are not reminding sentencers of their duty under the 2000 Act.
	I do not know whether the Minister is aware of what was said by Lord Justice Kay last Friday. If she is not, will she undertake to obtain a transcript of what was said and to bring the matter to the attention of the noble and learned Lord the Attorney-General? It is most important that those who work in the Crown Prosecution Service are fully aware of these provisions so that if the sentencer at trial makes a mistake in failing to sentence an offender to disqualification from working with children, it can be corrected.
	One occasionally reads in the newspapers that a person has been sentenced to a long prison term for offences against children but the issue of disqualification from working with children is not even mentioned. One naturally assumes, because disqualification is mandatory under the statute, that that could be because of reasons of space in the newspaper. But hearing what Lord Justice Kay said last week I begin to wonder whether that really is the case. To take just one example, I am sure the Committee will recall the terrible case of the paedophile, Luke Sadowski, who in August was sentenced to three years in prison for attempting to procure a nine year-old girl for sex over the Internet. That is an offence that qualifies for the imposition of a disqualification order under the 2000 Act. At the time he was arrested, Sadowski was about to start training as a primary school teacher. Was he disqualified from working with children, as he was required to be by law? That is an important fact that we need to know.
	I have checked the newspaper reports, and there is no mention of a disqualification order being made. If ever there were a case in which disqualification from working with children was needed, it was that case. Of course, I do not ask the Minister to provide an instant answer on that, but if she could investigate it and respond in writing I would be most grateful. I would also be grateful if she could investigate the general point of whether it is now possible to impose disqualification orders retrospectively on offenders who ought to have received them at the time of sentence, but did not because the sentencing judge simply failed or forgot to impose the order.
	I know that many noble Lords feel strongly about the matter. I tabled the amendments some time ago to try to convince the Government to increase the protection afforded to children by law. What was said by Lord Justice Kay in the Court of Appeal last Friday makes me afraid that even the existing protection is not properly applied. I hope that the debate will ensure that some action is now taken on the issues.
	My amendments go with the grain of what the Government say that they wish to see. They strengthen the protection of children who are subjected to or are the object of sexual abuse. One of the amendments exposes a worrying record of applying the law as passed by Parliament. I beg to move.

Baroness O'Cathain: As the amendments are also tabled in my name, I should say that I support them strongly. They were spoken to most ably by my noble friend.

Baroness Anelay of St Johns: I shall be equally brief, and shall merely signal that my noble friend Lady Blatch has performed a valuable service by tabling the amendments, which I hope will find favour with the Government.

Baroness Walmsley: I have some brief remarks. We on these Benches would like to support the amendments. There is very considerable merit in them. A 12-month custodial sentence cut-off seems very arbitrary. As sentencing patterns change and we perhaps move to more community sentences, people might be qualified to work with children who should certainly not be according to the intentions of Parliament at the moment. Therefore we need to look not only at an arbitrary sentence limit, but at the propensity of the people concerned. That is what should worry us most. In terms of child protection, it is the most important factor that we should take into consideration.
	If one accepts Amendments Nos. 212K and 212M, there is considerable logic in also accepting Amendment No. 212L, which we also support.

Baroness Scotland of Asthal: I should say straightaway that I am concerned by what the noble Baroness, Lady Blatch, said on the comments made by Lord Justice Kay. I will certainly look into that issue and write to her to get clarity about it. I will immediately raise the matter with my noble and learned friend the Attorney-General, who was in the Chamber but a moment ago. Indeed, he may be listening to the debate in a slightly different place. I shall certainly bring the matter to his attention, because it is very important.
	Before dealing with the amendments—I shall go through them to explain how we see the matter—I should say that I do not have a precise answer in relation to the case of Sadowski. We have a BBC indication that the requisite restriction may not have been put on him. I do not know whether that is right. We will certainly have to clarify it through the system and get verification. Members of the Committee will know that, regrettably, sometimes assertions are made that do not always prove true.
	Perhaps I may speak briefly about the scheme, by way of explaining where we are now. The scheme, as the noble Baroness rightly observed, was implemented in January 2001, but it is still too early to review its operation properly since it has affected mainly cases where the offence was committed after that date. We now have a ruling that allows its retrospective application, but that is very recent and the number of cases remains limited. If I may, I will write to the noble Baroness about that issue to set out what we know now and how we think it may operate.
	I clearly understand that the purpose of the noble Baroness's amendment is to widen the provisions in the Criminal Justice and Court Services Act 2000 to allow the disqualification of certain individuals from working with children and I fully support the sentiment behind the amendment; namely, that children should be protected from those who seek to cause them harm. However, the amendment is not quite right and I shall explain why that is so.
	As the noble Baroness has said, Sections 28 and 29 of the Criminal Justice and Court Services Act 2000 provide for individuals convicted of a relevant offence with a qualifying sentence to be disqualified from working with children. A qualifying sentence is defined in Section 30 of the Act and includes 12 months' or more imprisonment or detention, a 12-month or more detention and training order and a hospital order. I acknowledge the remarks of the noble Baroness about the distinction that can be drawn between those who receive 12 months and those who receive marginally less.
	However, the scheme is very carefully balanced. As the noble Baroness knows, it is quasi-automatic for adult offenders, thereby increasing the certainty of its application. It is also a life-long ban and imposes potentially significant restrictions on the offender. That is fully justified on the grounds of child protection, which is our paramount concern. However, the severity of the scheme means that we must tread carefully in extending its remit beyond cases where it can clearly be justified. If I may address the amendments of the noble Baroness in turn, I shall seek to amplify why that is so, since each of the amendments is slightly different in its effect, although they could be combined.
	The first amendment in the group, Amendment No. 212K, would ensure that anybody who commits any sexual offence against a child and is placed on the sex offenders' register as a result of that conviction, irrespective of the disposal of their conviction, should be disqualified from working with children.
	I should stress again that disqualification from working with children is an extremely serious measure which can be justified only on grounds of significant risk. I listened carefully to the noble Baroness, who clearly set out how she thought that risk presented itself. Although a review process exists, the ban is for life and covers all forms of working with children, including voluntary activity such as helping out at one's own child's football club. The degree of restriction placed on the offender is therefore of a different order of magnitude to registration, which is a monitoring and tracking device, and its effect could last long after the registration requirement had disappeared. That renders simple equation with the imposition of registration extremely problematic.
	At present, there are situations where a person convicted of a sexual offence against a child would not receive a sentence of 12 months or more and hence would not be already covered by the disqualification scheme. However, I should point out that where a court considers that an offender poses a significant risk of the kind that would justify a disqualification order, a prison sentence of 12 months or more should be awarded.
	The amendment before us would make two significant changes. First, it would—

Baroness Blatch: I bow to the noble Baroness's expertise in these matters because she knows much more about the court and judicial system than I do. But I have to say that I personally know of the case of a head teacher who systematically and almost daily over a period of about a year sexually abused a young girl. When he went to court it was deemed that he had probably suffered enough during the time it had taken for the case to come to court and the trial. Eventually, he was given no prison sentence but a rather large fine. Is the noble Baroness really saying that someone like that should be allowed to continue to work with children?

Baroness Scotland of Asthal: No, I am not suggesting that about someone who has habitually sexually abused a child over a significant period. I do not know the particular facts of the case to which the noble Baroness referred, nor whether it was referred to my noble and learned friend the Attorney-General. The noble Baroness says it was before the Attorney-General's reference.
	One of the dangers and difficulties—

Baroness Blatch: I thank the noble Baroness for giving way. She will know that according to an amendment we discussed earlier with my noble friend it is not possible to refer such a case as being unduly lenient.

Baroness Scotland of Asthal: I believe that the noble Baroness is wrong. We are talking about an indecent assault on a child, if that is what it was. That is why I say it is difficult to comment because I do not know the offence with which the teacher was charged. However, if as she says it was a sexual assault on a child, that falls within the category of offences which could be referred by the Attorney-General. I have taken the noble Baroness at her word that she understands that the person was charged with a sexual offence.
	It may be that there was some inappropriate touching. I really do not know the nature of the offence and therefore it is probably not right for me to comment in detail. However, if it were a sexual abuse and a sexual offence, my noble and learned friend the Attorney-General would be able to look at it. My noble and learned friend indicates to me that he would be happy for the noble Baroness to refer the details of the case to him so that he can write to her about the specific nature of the offence and what may have happened. If that will assist, he will be happy to do so.

Earl Russell: Will both noble Baronesses agree that it is difficult to have a clear opinion on any individual case of which one has not read the transcript? Can anything be done to make transcripts more widely and cheaply available than they are at present?

Baroness Scotland of Asthal: That is a debate for another day. However, the issue of transcripts and what we are trying to do in relation to them has been raised in the victims and witnesses ministerial group that I chair. The matter is under discussion. Technology is moving on and that may help us.
	The noble Baroness has given an indication of a case, but that does not take away from what I say. If on the face of these matters the terms are satisfied, there is an expectation that a person who poses a significant risk of the kind which would justify a disqualification order would be sentenced to 12 months or more in prison.
	The amendment before us would make two significant changes. First, it would render the scheme automatic for all those required to register. That would catch adults and juveniles alike. It would leave no room for discretion. That would be particularly serious in the case of juveniles, for whom at present there is a presumption against qualification in the Act. I strongly believe that this would be wrong. But even for adults, it could have an unfortunate and undesirable consequence.
	Let us take one example. Under the provisions in the current Sexual Offences Bill, an 18 year-old who is convicted of facilitating his 15 year-old sister and her 15 year-old boyfriend having sex would be automatically banned for life from work with children.
	Secondly, by including all those required to register, the sentence threshold would be lost. That would affect primarily adults. The aim is that proposals for registration in the Sexual Offences Bill will not provide for registration of juveniles for any offence other than rape or assault by penetration or a couple of other very serious offences unless a sentence of 12 months or more is given. But, even for adults, it could be unjustified, particularly for those like the 18 year-old in my previous example who is only just over the age of majority. To take another example, a 20 year-old indecently exposing himself to a 15 year-old would properly have to register but, once the facts were considered, a lifelong ban on working with children might not be justified. We are talking about making the ban automatic.
	It is also important to remember that any person made subject to sex offender registration may also, by way of application to the court, be made subject to a sex offender order or restraining order given at the time of sentence. That, in itself, can impose prohibitions on an offender, such as barring him from working with children. Therefore, any offender who was required to register but did not receive a long enough sentence to be automatically disqualified by virtue of Sections 28 or 29 of the Criminal Justice and Court Services Act 2000 could still be barred from such work by virtue of a sex offender order or a restraining order. That provides a useful failsafe mechanism which allows such cases to be considered in full on their merits, and that is the right way to deal with cases of this kind.
	I should perhaps mention a technical defect in the amendment as drafted. The noble Baroness uses Part 1 of the Sex Offenders Act 1997 as the trigger for disqualification. By virtue of Part 2 of the Sexual Offences Bill, which finished its Commons Committee stage on Tuesday, 14th October, the Sex Offenders Act 1997 will be repealed and replaced by provisions in that Bill. If an amendment of this nature were accepted, it would need to be redrafted to make reference to the appropriate sections of Part 2 of the Sexual Offences Bill. However, in view of the more fundamental objections that I have outlined, I invite the noble Baroness to withdraw Amendment No. 212K.
	I move on to consider the noble Baroness's second amendment—Amendment No. 212L—which seeks to include magistrates' courts in the definition of "senior court". We do not consider that to be appropriate as the magistrates' court is the most junior of all courts at present. It is therefore not entirely logical to include it in a definition of "senior court". More fundamentally, however, we believe that it would be proper to leave the balance where it is. Given the very serious nature of the disqualification order and its lifelong consequences, we consider it more appropriate to continue to restrict its use to the Crown Court.
	Finally, Amendment No. 212M removes the duration of 12 months from the qualifying sentences in Section 30 of the Criminal Justice and Court Services Act 2000. As a result, any sentence of imprisonment, irrespective of length, would result in disqualification from working with children. But it is the length of the sentence which, in many cases, reflects the threat which the court considers the offender poses to children. In the view of the court, those given shorter custodial sentences pose a smaller threat, and quasi-automatic disqualification may be inappropriate.
	That is particularly the case in relation to offences of violence. Here, the list includes offences such as wounding, causing grievous bodily harm and assault occasioning actual bodily harm. Those are high-volume offences which could cover numerous different kinds of assault, the majority of which, particularly if committed against teenagers, may signify no long-term or, indeed, short-term risk at all on the part of the offender. To remove the 12-month custody threshold in respect of those offences would add to the number of people who simply do not pose a risk to children but who would fall within the disqualification scheme.
	Similarly, with regard to the offence of supplying drugs to children—regrettably, we know that most children obtain drugs from their peers—lowering the threshold could greatly widen the net in a way that cannot be justified.
	Many noble Lords who have spoken in earlier debates on child issues are very concerned about the "child on child" aspect of these matters and do not want unnecessarily to criminalise children who are in the formative years who may change significantly over a period and who, it is to be hoped, with good help are able to rehabilitate themselves so that they start again.
	For example, for non-commercial supply of drugs at a party, custody is possible. While reprehensible, such conduct is unlikely to signify long-term risk to children such as to justify a lifelong ban on working with children. I said at the outset that I understand absolutely why the noble Baroness has tabled the amendments. I believe the whole Committee shares her concern to protect children, but the amendments would significantly distort the scheme and render it less effective by spreading its net too wide. We want the courts to be consistent. We definitely want them to be robust in awarding disqualification orders in almost every qualifying case concerning an adult, not to view the scheme as an optional add-on for use in the minority of cases. I, too, have been concerned by what the noble Baroness said. Certainly, I shall anxiously pursue this matter with my noble and learned friends the Lord Chancellor and the Attorney-General to try to get to the bottom of what is happening in this area.
	The fact that the scheme is automatic is its strength. It should work well and I should be very unhappy to see it diluted in such a way as to make it less efficacious. Once it has had time to settle down and bed into the culture of the courts we shall be able to assess its effectiveness. We made clear when the scheme was before the House that we intended to review its effectiveness once sufficient cases have had time to work their way through the system, in terms of its use by the courts and its use as a protection measure. It is perhaps too early to make major changes now. However, I understand why the noble Baroness brings it back. We shall consider these issues because I agree they are very important.

Baroness Walmsley: Before the Minister sits down perhaps I may ask for a couple of points of clarification. Early on in her response she indicated that one of her objections to accepting these amendments was that they could mean that an offender would be prevented from volunteering at his or her own child's playgroup, for example. Does that mean that the Minister feels that we should accept less rigorous standards in the voluntary sector than those we should accept in the public sector?
	Perhaps I may raise the second point before the Minister responds. The most convincing argument that the Minister made in her response has been the issue concerning automatic bans for juvenile sex offenders. The noble Baroness knows that I have always argued for children to be treated differently. Given what we know about the efficacy of treatment for young sex offenders and the potential for that sort of good quality treatment to change their behaviour completely, I would feel that what the Minister has had to say is very convincing.
	Does the Minister intend to say to the Committee that if the group of amendments was amended to take account of what I have just said about young sex offenders having the potential for treatment and changing their behaviour, she might be more inclined to accept a group of amendments that would affect only adults? Perhaps the Minister would clarify that in her response.

Baroness Scotland of Asthal: I am very happy to do so. I was not in the least suggesting that a different standard needs to be applied to the voluntary sector from that which we apply to the statutory sector; absolutely not. I was trying to give the example of the 18 year-old who has facilitated sexual activity by one of his siblings with their boyfriend or girlfriend, all of which is totally consensual as far as the young people are concerned but reprehensible and against the law and therefore the 18 year-old should be registered. But they may feel that they have not done anything so unforgivable that they should not go on to have a perfectly good relationship with their husband or wife and then have children.
	If that person is 18 and they did something of that sort, to say that they fall within the category of persons who must never under any circumstances work with children seems a little severe. The noble Baroness will know that among young people there is a different approach to sexual activity at a younger age than that at which many of us would like them to participate. They do not share our abhorrence, worry or concern that we, their parents, have on their behalf about early sexual activity that puts them at risk.
	So if we are considering that bracket, the provisions bite too hard. The whole point of making a distinction between the ordinary offence for which less than a year is applied and the 12-month provision is that we can know that the provisions, which will ban people for life—many of us are very comfortable with that ban for life—bite only when there is a serious risk and that we will not catch an 18 year-old who may have been in a fracas with a 15 year-old.
	The 15 year-old may be six feet four; the 18 year-old may be five feet two; but one could say that that is a physical assault on a child. Correct; but should that fracas between two teenagers be converted to a life-long ban for the elder teenager never to participate in children's care? The whole point of what we are trying to do is to ensure that those who abuse children—who seek to harm them in what is often a sexual, physical, abusive way—do not get that opportunity. We are not discussing the ordinary bad behaviour between two people who may see themselves as equal but find out that they are not.
	That is why we say that the present threshold is about right. I do not hide from the Committee that I have been worried by what the noble Baroness, Lady Blatch, has said—first, about how some courts may be applying it. There may be questions there about what we should do with the Judicial Studies Board and training. I am concerned about what I have heard about cases in which prosecutors and others are properly bringing that to the attention of the courts. I know that my right honourable and learned friend the Attorney-General will share that concern and address those issues, and I shall be happy to write to Members of the Committee about it.
	We are at an early stage because, although the provisions were introduced in 2001, there are few cases and we need to get the matter right. I repeat the genuine undertaking given by my late friend Lord Williams of Mostyn and my noble friend Lord Bassam that we will keep the issue under review and will want to return to it once we have a proper idea of where the land lies. I understand everything that has been said about the matter.

Baroness Blatch: Before I wind up on the amendment, I should be grateful if the noble Baroness would return to two points that she made, on both of which I must confirm my understanding of what she said—there may be some mistake. Am I right that she said that, although magistrates will in future be able to award sentences of up to one year, if someone commits a qualifying offence—as set out in the 2000 Act—and receives a sentence of one year, because it is given in a magistrate's court, he will not receive a disqualification order; but that, if it were in the senior court, he would? If my understanding of what the noble Baroness said is correct, that seems absurd.
	The other point that I should like confirmed or otherwise is that of retrospection. For all those cases that have gone before the courts where a disqualification order should have been applied but has not been, will it be possible to apply one retrospectively? If not, we have an especially worrying situation in which people have received sentences of one year or more for serious crimes of sex and/or violence against children but will be allowed to work with children in a voluntary capacity or otherwise.

Baroness Scotland of Asthal: I said that I believed we had received a very recent ruling that would allow the retrospective application of this procedure. I have not yet looked at the ruling myself. The number of cases will still be limited. I would quite like to see the authority myself to verify that it does what we hope it will do. I shall write to the noble Baroness to clarify the matter. I believe that I can reassure her that we can seek to put it right.
	On the seniority of the court, I am not suggesting for a moment that the magistrates' court will do one thing and the Crown Court another. When dealing with this sort of application—we are talking about a lifelong ban—the appropriate level of judicial office to impose that ban will be the Crown Court. In due course it may be deemed appropriate for those cases to be transferred to the Crown Court to be dealt with there.
	We take the issue very seriously—I can take it away and consider it. The noble Baroness will know that there will be a transitional period before the magistrates' court can deal with cases. They will deal with cases up to 51 weeks. Cases up to 52 weeks will go elsewhere. Given the gravity of what we are doing, we think such cases deserve to be dealt with by a more senior judge. There is no suggestion that one approach operates in the magistrates' court and another in the Crown Court. The Crown Court seems more appropriate, because we are talking about denying someone an opportunity for ever. That is an important and necessary, but quite draconian, step.

Baroness Blatch: I am reasonably satisfied on the first point in that the noble Baroness will write to me. It seems not that the department or Ministers will seek to have retrospective orders applied, but that, if it is legally possible, they will be applied in every case where a qualifying offence is committed. I look forward to hearing from the noble Baroness on that point.
	I am deeply disturbed by the noble Baroness's response to my point about the magistrates' court. There is a serious lacuna in that, if someone goes before the magistrates' court and receives the maximum sentence allowed under the Bill for a sexual and/or violent offence against a child, and the magistrates' court is not empowered to apply a disqualification order, the case is not necessarily transferred to the senior court. I would like the noble Baroness to reflect on that point and perhaps to return to it at another stage.
	The response was less generous than that given by Lord Williams of Mostyn, who led me to believe that there was to be a review. He thought that 18 months to two years would be about the time. We have almost passed that point. It seems that there has not been a review. Had there been one, the department, or certainly the Minister's advisers, would have known about some of the revelations that I made in my speech. It is astonishing not only to find out from Lord Justice Kay last week about the application of the disqualification order measures over nearly two years, but also that it has not been picked up before now. I find that very disturbing.
	I mentioned earlier the case of a headmaster who systematically, over a period of around one year, abused a young girl almost daily, was deemed by the courts to have suffered enough and given a fine rather than a custodial sentence. That case predates any attempt to go back to the court. I gave that as a real example of the kind of case where the courts can take a view that a custodial sentence is not appropriate, for one reason or another. If it is not a year, and the particular offence is very serious, it seems that there is a case for a disqualification order. One way or another, we will have to look at the issue.
	It is inappropriate for a person who has sexually abused or been violent against a child to work with children in a voluntary or paid capacity. We need to seek ways of ensuring that they do not. The noble Baroness said that the purpose of my amendment was to widen the scheme. I would go further. The purpose of my amendment was to widen the scheme in order to strengthen the protection of children. It was a means to an end. There is a lacuna here that needs to be examined.
	Like the noble Baroness, Lady Walmsley, the Minister made some persuasive points about child-on-child crimes and the lesser end of some of the offences mentioned. However, she will know, as I do, that I am talking about very serious sexual and violent crimes against children that are not always dealt with appropriately in the courts. That can be because a judge and/or magistrate can think of very good reasons why the defendant should not be given a particularly long custodial sentence of a year or more. I mention Gary Glitter. He is somebody who should never work with children, but he would not, under the present system and even under the scheme as proposed, have received a disqualification order. In my view, he should have.
	I will take this amendment away and consider a way of addressing only the points of concern mentioned by the Minister—the lesser end of child-on-child offences. There is a very powerful argument for looking at many of the other cases that are alluded to and I hope that the Minister will be a little more accommodating if we return with a sensible amendment that picks up her concerns, which she rightly put to me. As to the technical defect, it had been my intention to test the opinion of the Committee. However, I will not do so, because the Minister has given good reasons why we should delay and reflect on this matter until the next stage. However, technical defects have never worried me because if amendments are agreed in this House it is a matter for the powers that be to ensure that the Bill is consistent with the wishes of the House. Although I admit to the technical defect, as a result of what happened in another place it was of less concern to me. In the light of what has been said, and of the promises that have been made, I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.
	[Amendment No. 212L and 212M not moved.]
	Clause 263 agreed to.
	Schedule 19 agreed to.
	Clause 264 agreed to.
	Schedule 20 [Drug treatment and testing requirement in action plan order or supervision order]:

Baroness Walmsley: moved Amendment No. 213:
	Page 275, line 8, at end insert—
	"(c) that his dependency upon, or propensity to misuse, drugs is related to his offending behaviour, such that it is relevant and proportionate for the court to require treatment, and
	(d) that the option of voluntary treatment provided concurrent to the order would be unsatisfactory"

Baroness Walmsley: I shall speak also to the other five amendments in this group. These six amendments fall into three pairs. The purpose of Amendments Nos. 213 and 216 is to ensure that the power to attach drug treatment and testing requirements to action plan and supervision orders would be used by the courts only if alternatives of voluntary treatment had been considered and rejected as unsatisfactory. Also, they would build in safeguards to ensure appropriate and proportionate responses to young people.
	The children's organisations that have briefed us on these amendments, as well as the Howard League, NACRO and the National Association for Youth Justice, believe that any compulsory medical or psychological treatment by court order should be taken as a very serious prospect and recognised as one that incurs many civil and children's rights issues. They and we are concerned in principle at the prospect of children are being compelled on pain of criminal offence of breaching a court order to undergo the treatment that they need.
	We are deeply concerned that the provisions contained in Schedule 20 do not include safeguards to ensure that the very serious step of using court compulsion to treatment would be used only when absolutely necessary and when voluntary options had already been considered and tried. In Committee in another place, the Minister said that,
	"the court would include a treatment requirement in the orders if it was satisfied that that would be a relevant and proportionate intervention. That test is very important".—[Official Report, Commons Standing Committee B, 11/3/03; col. 976.]
	Surely, it is therefore valid and vital to incorporate such an important test into the legislation providing for the powers.
	Proposed government amendments to Schedule 28 include criteria to ensure that residential course requirements in a parenting order should be imposed only when they would be effective in preventing further offending and would be,
	"proportionate in all the circumstances".
	It is equally important to have such safeguards in the Bill with regard to compulsory drug treatment for children.
	I shall say a few words about voluntary treatment. Although there has recently been rapid growth in young people's community treatment services, there are, in many areas, few new services. Often, they are unknown to many young people in the area. For many children who get involved in offending and drug use, involvement with youth offending team drug specialists will be the first time that they have been made aware of the availability of youth-centred drug services. Children's organisations believe that, as a matter of course and good practice, the possibility of voluntary treatment should be proactively encouraged by youth offending team agencies and the courts and should be the preferred option before the necessity for court compulsion. The amendments would ensure that there were additional safeguards to ensure that voluntary treatment was explored by the courts prior to the attachment of treatment and testing requirements for children and young people.
	Amendments Nos. 214 and 217 would ensure that, prior to the attachment of a requirement for drug treatment to a supervision and action plan order, the court would have regard to the child's understanding of and willingness to comply with a programme of treatment. The treatment requirements in Schedule 20 could be included in an order for any person aged 10 or over. The proviso that the court should be satisfied that the young person's consent has been obtained, if he or she is 14 or older, implies that a child over 14 would automatically be competent to consent on his or her own to the inclusion of a requirement and that it would not be equally important for the court to establish the views and willingness of a young person under 14 to comply with the requirement. Children's organisations believe that both those implications are problematic. The amendments would ensure that each child who is assessed for such an order had the opportunity to express his or her views and intentions with regard to the proposed treatment, whether it is they or their parents who will need to give express consent to the inclusion of the requirement in the order.
	The schedule raises the question of valid consent, which is already established in statute and common law. For any person under the age of 16, it should generally be presumed that a parental responsibility holder must give consent on behalf of the child. However, under what we know as the Gillick principle, if there is unwillingness or inability to involve parents, the young person may be assessed as competent to give their own consent only if they are mature enough to understand the nature of the situation and the proposed course of action.
	I agree with the Minister in another place who said:
	"It is for the court to determine the maturity of the child and to consider both the child's and the parent's response to the inclusion of the treatment provision".—[Official Report, Commons Standing Committee B, 11/2/03; col. 979.]
	The Minister made that statement with reference only to those under the age of 14. I cannot understand why the age for such assessment by the court should be lowered from 16 to 14. The Bill gives the impression that a person of 14 would always be expected to be competent to give consent to the inclusion of a treatment requirement. In doing so, it confuses considerably the existing legal position on under-16s and Gillick competence.
	Among such young people, who will, by definition, be involved in offending and heavy drug use, there is a high likelihood that levels of understanding and maturity will be lower than those of many of their peers. We also know that reading and learning difficulties are more prevalent among young offenders as a group, which raises again the likelihood that such a 14 year-old would not be considered competent to consent to the inclusion of the requirement.
	By inserting the fact that "appropriate consent" must be obtained, the amendments would ensure that the Government do not create further confusion in the already difficult legal area of young people's consent. The amendment would leave it as a matter for the court and for professional assessors to make judgments about each child's competence to give consent.
	Amendments Nos. 215 and 218 are intended to remove the testing requirement in action plan and supervision orders that can be applied where a treatment requirement has already been made. The amendments would also ensure that testing is rooted in treatment and is not seen as an intervention in and of itself. Children's organisations believe that the requirements are entirely unnecessary given that drug testing, where professionals believe it to be necessary as part of treatment monitoring, could already be detailed within a treatment plan under the treatment requirement.
	Failure to comply with treatment, including therefore any testing that forms part of a treatment programme, would already result in breach. Therefore, the measure is unnecessary. We are concerned that the addition of testing requirements, on top of treatment requirements, as separate breachable conditions of sentence will rack up the conditions imposed by an order, in turn heightening the risk of the young person's failure to comply with an order.
	These measures are disproportionate and unnecessary. It is of concern that there appears to be no consideration given to the question of proportionality in creating layers and layers of additional requirements on the young person. In human rights terms, the overall level of personal restriction and compulsion required by the sentence must still be consistent with, and proportionate to, the seriousness of the offence of which the young person has been convicted. These testing requirements would add an extra layer and thereby make the whole sentence disproportionate. I beg to move.

Lord Hylton: I agree that something like Schedule 20 is desirable. Nevertheless, I strongly support what the noble Baroness, Lady Walmsley, said about the voluntary principle for treatment. If that can be built in, it would make the treatment very much more effective in the great majority of cases. The words,
	"indicated his willingness to comply, and the appropriate consent",
	in Amendment No. 214 are of great importance. Perhaps the Government would consider whether, in the case of under 18 year-olds, the consent of the parents should also be required.
	Whether or not these amendments are accepted, Schedule 20 will have major resource implications. Can the Minister reassure the Committee that the necessary resources are already available and have already been budgeted for? I hope that is so, but if it is not—there may be a risk there—perhaps the commencement of the schedule could be delayed, as compared with other parts of the Bill. Perhaps, too, the implementation of the schedule could be varied from one area of the country to another as the necessary resources become available.

Lord Bassam of Brighton: Schedule 20 amends the Powers of Criminal Courts (Sentencing) Act 2000 to enable a requirement for drug treating and testing to be included in an action plan order or a supervision order. As drafted, the clause allows the court to include a treatment requirement in the event that it is satisfied that the offender is dependent upon or has the propensity to misuse drugs and that his or her dependency or propensity is such as requires and may be susceptible to treatment.
	Amendments Nos. 213 and 216 tabled by the noble Baroness, Lady Walmsley, would further require the court to be satisfied that the offender's dependency or propensity to misuse drugs is related to their offending behaviour and that the option of voluntary treatment is considered unsatisfactory.
	We believe that if a young offender has a dependency on or a tendency to misuse drugs, it is important for the courts to have the option of including a treatment requirement in an action plan order or supervision order in order to ensure that the young offender has access to the treatment and support that they need as part of their community sentence. That is the case regardless of whether the dependency or propensity is specifically related to the offence of which they have been convicted.
	There is plenty of well established anecdotal evidence that links illegal drug use with offending, but there is also a substantial body of research on the matter. I would point the noble Baroness to Home Office Research Findings 192 and Home Office Research Study 261 entitled Substance use by young offenders, a publication authored by Richard Hammersley, Louise Marland and Marie Reid. This examined the prevalence of substance use and offending among a sample of 293 young people who were clients of 11 youth offending teams in England and Wales. Forty per cent or more of the cohort felt that there was some relationship between their substance use and their offending. A further 44 per cent said that they sometimes committed crimes to get money for drugs or alcohol.
	Although not all drug users go on to commit crimes related to their drug use, we think that it is important to take every opportunity to identify and address, as early as possible, dependency on or the propensity to misuse drugs so as to minimise the chances of a young drug user entering a cycle of drug misuse and offending.
	The clause as drafted ensures that the courts can include a treatment requirement in these orders only if it has been recommended as suitable for the offender by an officer of a local probation board or by a member of a youth offending team, and if it was satisfied that a treatment requirement was both a relevant and, to use the term of the noble Baroness, a proportionate intervention.
	In respect of the possibility of voluntary drug treatment running concurrently with an order, of course it is open to any drug misuser to seek voluntary treatment at any time. If the offender has done so, and the courts are made aware of previous or continuing treatment, this would be taken into account when considering whether to include a treatment requirement in an order.
	However, the purpose of this schedule is to allow treatment to be included as a component of a community sentence. If an offender consented to treatment as part of an order and subsequently dropped out of that treatment, or withdrew their consent, this would be taken into account in deciding how best to deal with that offender in the context of a continuing aim to help them address their drug-using behaviour. If treatment was separate from the order, there would be less incentive for the offender to continue with treatment. If they were to drop out of treatment after the making of an order, there would be no way for the court to then make provision for the drug-using behaviour to be effectively addressed. For those reasons, we would resist Amendments Nos. 213 and 216.
	Amendments Nos. 214 and 217 require offenders aged 14 or over to indicate a "willingness to comply" with the requirement and give "appropriate consent" to its inclusion in the order. The schedule as drafted already requires the consent of those aged 14 and above to the inclusion of a requirement in the order. With regard to a "willingness to comply", as I have already mentioned, at present the court cannot include these requirements unless they have been recommended as suitable for the offender by an officer of a local probation board or a member of a youth offending team. Before making such a recommendation, the probation officer or youth offending team member would of course take into account the willingness of the offender to comply with the order. We therefore feel that these amendments do not add anything to the clause as drafted and propose that they should be resisted.
	We also resist Amendments Nos. 215 and 218, which seek to remove the ability of the court to include a drug-testing requirement alongside the treatment requirement for those aged 14 and over. Allowing a testing requirement to be included in the orders is necessary to assist the officer responsible for treatment in ascertaining whether or not the treatment the offender is receiving is effective. It is also a useful tool for the treatment provider to tailor the treatment according to the needs of the offender. Treatment without testing could make the treatment order completely irrelevant. The two are very clearly linked.
	The best response I can give to the points raised by the noble Lord, Lord Hylton, is that we believe we have got the resources necessary to implement the scheme. The orders will be made on the recommendation of a probation officer or a recommending officer only if they have fully investigated whether the parent and child are supportive of, and in agreement with, the requirement being attached as a condition. We recognise that the issue of consent is important. The parents should be involved and will be consulted as part of the process. I hope that that answers the noble Lord's point.
	I understand the points raised by the noble Baroness but we believe that there should be a degree of compulsion. It will not undermine the way in which the orders will work; it will enhance them. Clearly it is most appropriate that the way in which the scheme works should involve the active participation of offenders and a recognition on their part that they face profound problems. Ultimately, it may well be in their best interests that the element of compulsion is there and is retained, but we would hope to achieve our objective without it.

Lord Hylton: Before he sits down, can the Minister say anything about the availability of treatment resources and, depending on that, the implementation of the clause?

Lord Bassam of Brighton: I was perhaps not clear because of the hour of the day and my slight tiredness. We believe that we have the resources in place fully to implement the scheme. So the resources are there, as the noble Lord would wish them to be.

Baroness Walmsley: I thank the Minister for that reply. I was shocked to hear him say early in his response that the clauses as drafted are perhaps the only way of ensuring that appropriate treatment is available; that if it is part of a sentence then it has got to be made available. I question whether there is sufficient availability of youth-focused drug treatment services across the country. If the Minister looks into the matter he will find that many agencies have been highly critical of the availability and quality of this kind of treatment.
	The Minister referred to the link between crime and drug use. I am not arguing for one moment that there is no link—we know perfectly well that there is—but there are cases where a young person may test positive for a drug without having a regular and problematic habit which is linked to the offence. It is very important that a programme of treatment should be imposed only when it is quite clear that there is a definite problematic habit which is linked to the offence.
	The Minister also referred to young people being expected voluntarily to seek treatment and that this would be made known to the court. It is asking an awful lot of a young person voluntarily to seek treatment, especially given the fact that the availability of such services is as I have described.
	Most drug treatment agencies will tell you that it is usually more effective if a person undergoes treatment voluntarily and is willing to comply with the programme. These programmes are not easy to see through to the bitter end; it is a very difficult thing to kick a habit. Therefore, I stick to my guns as far as the need for the voluntary nature of these services is concerned. In the mean time, I will read carefully what the Minister has said and may return to these matters at a later stage in the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 214 to 218 not moved.]
	Schedule 20 agreed to.
	Clause 265 agreed to.
	Schedule 21 [Summary offences no longer punishable with imprisonment]:
	[Amendment No. 218A not moved.]

Baroness Scotland of Asthal: moved Amendments Nos. 218B to 219:
	Page 284, line 4, at end insert—

"Magistrates' Courts Act 1980 (c. 43)

74A An offence under section 84(3) of the Magistrates' Courts Act 1980 (making of false statement as to means)." Page 284, line 12, leave out paragraph 77.
	Page 285, line 9, at end insert—

"Criminal Justice Act 1991 (c. 53)

87A An offence under section 20A of the Criminal Justice Act 1991 (false statements as to financial circumstances)."
	On Question, amendments agreed to.
	Schedule 21, as amended, agreed to.
	Schedule 22 [Increase in maximum term for certain summary offences]:

Baroness Scotland of Asthal: moved Amendments Nos. 219A and 219B:
	Page 291, line 2, leave out paragraph 28.
	Page 291, line 7, at end insert—

"British Nationality Act 1981 (c. 61)

29A In section 46 of the British Nationality Act 1981 (offences and proceedings), in subsection (1) for "three months" there is substituted "51 weeks"."
	On Question, amendments agreed to.
	Schedule 22, as amended, agreed to.
	Clause 266 agreed to.
	Clause 267 [Increase in maximum term that may be imposed on summary conviction of offence triable either way]:

Baroness Scotland of Asthal: moved Amendments Nos. 219C and 219D:
	Page 151, line 32, leave out from "exceeding" to end of line 41 and insert "12 months"
	Page 152, leave out lines 4 to 8 and insert "12 months"
	On Question, amendments agreed to.
	Clause 267, as amended, agreed to.
	Clause 268 [Enabling powers: power to alter maximum penalties]:

Baroness Scotland of Asthal: moved Amendment No. 219E:
	Page 152, leave out lines 32 to 36 and insert "to 12 months".
	On Question, amendment agreed to.
	Clause 268, as amended, agreed to.
	Schedule 23 [Enabling powers: alteration of maximum penalties etc.]:

Baroness Scotland of Asthal: moved Amendments Nos. 219F to 219J:
	Page 296, leave out lines 32 to 40 and insert "twelve months"
	Page 297, leave out lines 25 to 33 and insert "twelve months"
	Page 298, leave out lines 7 to 15 and insert "twelve months"
	Page 298, leave out lines 28 to 36 and insert "twelve months"
	On Question, amendments agreed to.
	Schedule 23, as amended, agreed to.
	Clause 269 [Increase in penalties for drug-related offences]:
	On Question, Whether Clause 269 shall stand part of the Bill?

Baroness Walmsley: I oppose the question that Clause 269 and Schedule 24 stand part of the Bill. They are all about changing the maximum sentences from five to 14 years for five Misuse of Drugs Act offences and two others. One is related to customs legislation and the other to ships used for illicit traffic.
	We on these Benches have made our views on the issue very clear. Public policy should clearly differentiate between drugs in each of the three classes. Leaving aside the issue of whether it is appropriate to imprison people simply for possession of drugs for personal use, we should be careful not to give the same signals on penalties in relation to class C drugs as we give in relation to class A and B drugs.
	I believe that at the root of this clause and schedule is the fact that the Government do not have the courage of their own convictions. On the one hand, they propose to reclassify cannabis as group C; on the other hand, they do not want to appear soft and are, therefore, increasing the penalties for the various offences almost threefold. The danger of the proposals is that there will be a very muddled policy, which will muddy the waters rather than give a straightforward message.
	Clearly, dealing in class A drugs is an offence that should expect the harshest of treatment. Dealing in class B drugs is dangerous, but not quite as dangerous as it is with class A drugs. Class C drugs are still dangerous, but not nearly as dangerous as class B drugs. That is the basis of the classification system. If those are the messages that we want to give out to the general public, the maximum prison sentences should follow in graded severity. It is nonsense to increase the maximum prison sentence to what the statute book says could be the punishment for an offence so that it is comparable to a sentence for an offence relating to class A and B drugs. That makes a complete nonsense of the classification system.
	The argument is not about whether there should be no prospective penal response but about the level of that response. Clearly, there are certain categories of people to whom society should give a discipline, such as a general practitioner who misuses his or her ability to prescribe, or to someone who not only turns a blind eye but becomes an aider and abetter of the use of drugs when running a hostel. However, there is a danger that people dealing in cannabis, benzodiazepine or anabolic steroids will prospectively be in the same league in terms of sentencing as those who deal in crack cocaine or heroin, which are much more dangerous drugs.
	We on these Benches believe that it would be much better to remove Clause 269 and Schedule 24 and replace the schedule with a provision setting a maximum of perhaps four years, or a similar sentence. There is nothing cut and dried about that, but it would be a relatively appropriate maximum tariff given that the maximum sentence for trafficking in class A drugs is 14 years.
	We are concerned that the penalty appears a disproportionate response to those using class C drugs. Class C drugs are thought to be the least serious category, so why should there be an almost threefold increase in the maximum punishment? We believe that the Government are saying one thing on the one hand then doing another, to be seen to be tough on drugs. That is quite illogical and sends out mixed messages.

Baroness Scotland of Asthal: Of course, I understand the anxiety expressed by the noble Baroness, but we do not believe that there is a mixed message. Those who use and abuse class C drugs and consume them themselves are treated firmly but with a deal of charity, understanding and therapy, and those who deal in drugs and are the purveyors of class C drugs fall into a different category. That is the distinction that is being made—if people traffic in drugs, we will treat them robustly. If people use and abuse drugs, they will fall into a different category.
	The noble Baroness will know that what we must fight in this country is the scourge of those who peddle drugs outside our schools and our public places to increasingly younger children. We do not hesitate to make the distinction. In the case of young people of tender years who use and/or abuse class C drugs, there is a whole raft of things that we must do. We must educate them, help them, or restrain them. But for the purveyors of drugs, who wish to feed on the weakness and susceptibility of others, we send them a clear and different message. It is not a confused message, but a clear one. It involves saying, "For you we apply a very different strata".
	The Government believe that a 14-year penalty for all class C drugs is needed, first, to deal with the small number of cannabis trafficking cases each year which attract sentences of 10 years or more. Those still exist. I am sure the noble Baroness will be aware of massive trafficking where people earn colossal amounts of money from purveying this drug which, as the noble Baroness rightly said, is still regarded as dangerous. In view of this, there is a strong argument for retaining the maximum penalty for trafficking cannabis at its current level of 14 years' imprisonment, post reclassification, so that the courts can continue to impose substantial sentences in those cases.
	Secondly, although serious dealing offences in existing class C drugs—that is, anabolic steroids and the benzodiazepines—are exceptional, nevertheless the provision needs to apply to those class C drugs as well as cannabis because we need to send a clear message that trafficking in any illegal drug will be taken very seriously whatever its classification. Reducing the prevalence of drugs on our streets means that we must tackle the supply at all levels, including by legislative means. I know that the noble Baroness cares passionately about these issues and of the effort that she and a number of other noble Lords put in to try to deal with the needs of children who become subjected to this class and other classes of drugs. We share that passion.
	Looking ahead, Schedule 24 will also help the United Kingdom to meet anticipated obligations to comply with measures currently set out in a draft European Union Council framework decision to harmonise drug trafficking penalties and to have maximum penalties of at least 10 years' imprisonment for serious drug trafficking involving any controlled drug where organised crime is involved. Since United Kingdom law does not differentiate between trafficking offences involving organised crime and those which do not—the courts take account of these factors in deciding the level of sentence—in order to satisfy our EU obligations we would need to increase the maximum penalty for trafficking in a class C drug at least to 10 years' imprisonment. Thank goodness we are getting much better at working together with our European and other partners and achieving a higher rate of interdiction than we had previously. It is pleasing to see the success that we have had in recouping substantial assets. We are demonstrating to these offenders that they will not profit from these offences.
	I appreciate what the noble Baroness says about other offences but I remind her that if we look at the record for this year it is clear that significant cases have arisen. For instance, this very year a person was sentenced to five years and had to pay a confiscation order of #6,844. There is a bracket of traffickers at the lower end. That does not mean that the court cannot impose an appropriate sentence at the lower end.
	As the noble Baroness knows, there is a big difference between someone who supplies a drug quite improperly to a series of friends and others who import drugs and are part of a serious gang. Those are very different categories. We must have an ambit of punishment within which the courts can make that differentiation and say to the international drug trafficker who seeks to take advantage of the weakness of others, "No, we shall not let you do that, and here is the punishment commensurate with your crime". We understand the concept of forgiving the sinner but we still do not like the sin.

Baroness Walmsley: I thank the Minister for her response although I am still not convinced about the illogicality of having the same set of maximum sentences for trafficking all the different classifications of drugs. Of course we accept that drug trafficking is a very serious offence and should be dealt with very seriously, particularly when it concerns class A and B drugs. If we are to have a classification system, it is logical to have a classification of offences and sentences, too. However, I thank the noble Baroness for her response.

Clause 269 agreed to.
	Schedule 24 agreed to.
	Clause 270 [Increase in penalties for certain driving-related offences causing death]:

Lord Goldsmith: moved Amendment No. 219K:
	Page 153, line 23, at end insert—
	"(4A) Part I of Schedule 1 to the Road Traffic Offenders (Northern Ireland) Order 1996 (S.I. 1996/1320 (N.I. 10)) (prosecution and punishment of offences) is amended in accordance with subsections (4B) and (4C).
	(4B) In the entry relating to Article 9 of the Road Traffic (Northern Ireland) Order 1995 (S.I. 1995/2994 (N.I. 18)) (causing death or grievous bodily injury by dangerous driving), in column 4, for "10 years" there is substituted "14 years".
	(4C) In the entry relating to Article 14 of that Order (causing death or grievous bodily injury by careless driving when under the influence of drink or drugs), in column 4, for "10 years" there is substituted "14 years"."

Lord Goldsmith: Clause 270 increases the penalties available for certain driving offences in England and Wales. Amendment No. 219K, tabled in the name of my noble friend Lady Scotland, makes similar provision for two corresponding offences in Northern Ireland.
	The actions of dangerous and irresponsible drivers that result in someone losing a life can be devastating not only for the victims and their families, but for whole communities. Clause 270 proposes an increase in the maximum penalties for offences in England and Wales of causing death by dangerous driving, death by careless driving while under the influence of drink or drugs, and aggravated vehicle-taking where as a result of the driving of the vehicle an accident occurs and death results. That provision implements the decision, announced in July 2002 in the Government's report of the review of road traffic penalties, to increase the penalties as soon as an appropriate legislative opportunity arose.
	In Northern Ireland, the communities face the same grave difficulties with road traffic collisions as England and Wales. There is a high degree of concern, as Members of the Committee will know, at the unacceptably high number of deaths on the roads of Northern Ireland. As part of the commitment to improve both road safety and awareness of road safety issues, my right honourable friend the Secretary of State for Northern Ireland has decided to increase the maximum available penalties there from 10 to 14 years for the offences of causing death or grievous bodily injury by dangerous driving, and causing death or grievous bodily injury by careless driving while under the influence of drugs or drink. Those are not exactly equivalent, but cover at least part of the same areas as Clause 270 does in relation to England and Wales.
	That will send a clear signal to drivers in Northern Ireland of the seriousness with which the Government regard those types of behaviour, and will raise awareness of the terrible and eminently avoidable consequences. It will also give the judiciary in Northern Ireland wider powers to deal with offenders in a relevant and appropriate manner, allowing them to offer greater protection to the community and to increase public confidence in the criminal justice system. I beg to move.

On Question, amendment agreed to.
	Clause 270, as amended, agreed to.

Baroness Scotland of Asthal: moved Amendment No. 220:
	After Clause 270, insert the following new clause—
	"INCREASE IN PENALTIES FOR OFFENCES UNDER SECTION 174 OF THE ROAD TRAFFIC ACT 1988
	(1) In Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (c. 53) (prosecution and punishment of offences), in the entry relating to section 174 of the Road Traffic Act 1988 (c. 52) (false statements and withholding material information), for columns (3) and (4) there is substituted—
	(a) Summarily (a) 6 months or the statutory maximum or both
	(b) On indictment
	(b) 2 years or a fine or both."
	(2) Section 267(4) (increase in maximum term that may be imposed on summary conviction of offence triable either way) has effect in relation to the entry amended by subsection (1) as it has effect in relation to any other enactment contained in an Act passed before this Act.
	(3) This section does not apply in relation to any offence committed before the commencement of this section."

Baroness Scotland of Asthal: I shall speak also to Amendment No. 221E. Is that right?

Baroness Anelay of St Johns: The noble Baroness should speak to Amendments Nos. 220 and 256.

Baroness Scotland of Asthal: The amendments are technical. I am sorry.

Lord Bassam of Brighton: This is still the Northern Ireland stuff.

Baroness Scotland of Asthal: I beg the Committee's pardon; I thought that my noble and learned friend the Attorney-General had dealt with that. The amendments refer to the fraudulent obtaining of a driving licence—it is all coming back—and knowingly countersigning a false application for a driving licence, which are presently dealt with under Section 174 of the Road Traffic Act 1988. The maximum penalty for each offence is a fine of #2,500. That penalty does not recognise the potential use of the documents as gateways to organised crime and terrorism; rather they concentrate on the financial value of the document.
	Amendment No. 220 raises the maximum penalty available to the court for an offence of fraudulently obtaining a driving licence to two years' imprisonment, aligning it with that available for an offence of fraudulently obtaining a passport. Noble Lords will know from earlier debates in other committees how important those issues are and how much use is made of those documents.
	That increased penalty will more accurately reflect the reliance placed upon both documents by many organisations as evidence of identity. Fraudulently obtaining either document will incur a maximum penalty of two years' imprisonment and will serve as a more effective deterrent than a fine or a short period of detention.
	In speaking to the amendment, it would perhaps be convenient to speak also to Amendment No. 256 which would extend that increase in penalty to Scotland. I beg to move.

On Question, amendment agreed to.
	Clause 271 [Minimum sentence for certain firearms offences]:
	[Amendment No. 221 not moved.]
	[Amendments Nos. 221A to 221D had been withdrawn from the Marshalled List.]
	On Question, Whether Clause 271 shall be agreed to?

Lord Thomas of Gresford: The removal of the clause would erase the firearms offences. Your Lordships will recall last New Year a terrible and tragic shooting in Birmingham which resulted in the death of two young girls. That was immediately followed by the promulgation of a minimum sentence for firearms offences.
	I know the spot; I have seen it. It is close to a club in Birmingham where I was involved in another shooting incident some years ago. A person trod on somebody's foot in a bar and was invited out for a fight. When the other man raised his fists, he shot him. That resulted not in a five-year sentence, but in a very lengthy sentence for attempted murder. Where firearms are used in armed robbery, one would expect a sentence of 10 years. On the other hand, one would expect a sentence of rather less than five years in circumstances, which may well have occurred, where the police burst into a club and a gangster with a gun hands it to his girlfriend, who puts it in her handbag and is therefore in possession of a firearm. For her to serve five years for that momentary possession of a gun would seem to be quite beyond what is required.
	We therefore come back to the problem which has recurred throughout our consideration of the Bill: why must we have minimum sentences? Instead of making a gesture because of a particular incident, why do the Government not rely simply on the sentencing practices of the judiciary, which would give far more than five years in appropriate cases, while in other cases it can easily be envisaged that very much less would be given?
	There is an infinite variety. I wonder how many more times I will have to say that. I would be interested to hear the Minister's explanation of why, in this particular case, a minimum sentence is again required.

Baroness Scotland of Asthal: As the noble Lord has indicated, Clause 271 provides a mandatory minimum sentence for unauthorised possession of a prohibited firearm. That is a key part of the Government's strategy for tackling gun crime and the gun culture. Overall, gun crime remains relatively low. It makes up 0.4 per cent of all recorded crimes. However, we have seen an unacceptable rise in recent years. The terrible shootings recently in Nottinghamshire, Hertfordshire, Berkshire and Liverpool highlight the growing use of guns in crime. That is a disturbing trend which we are determined to reverse.
	In 2001–02, firearms were used in more than 22,000 recorded offences in England and Wales. That is an increase of 27 per cent on the previous year. There were 97 fatalities and 558 serious injuries resulting from crimes that involved firearms.
	Most gun crime is still criminal damage caused by air weapons, and the Government are addressing that problem with measures on the Anti-social Behaviour Bill, as your Lordships know. But we are also seeing an unacceptable rise in the use of handguns and light automatic weapons and more and more young people carrying or using imitation weapons to gain respect or intimidate others. In 2001–2, nearly 10,000 recorded crimes involved a firearm other than an air weapon—an increase of 35 per cent on the previous year. Handguns were used in 5,871 crimes—a rise of 46 per cent. Handguns are now used in 58 per cent of armed crime.
	The noble Lord, Lord Thomas of Gresford, asks: why not leave it to the judges? We believe that Parliament has a role to play. Some of this rise is associated with gang culture, which is itself linked to the illegal drug trade. The Government are committed to tackling this, as noble Lords know. We want to deter criminals from using firearms and to ensure they receive appropriately tough sentences on conviction.
	Clause 271 inserts a new Section 51A into the Firearms Act 1968, which provides a mandatory minimum sentence for unlawful possession of prohibited firearms. I must stress that this will not affect the maximum sentence in any way. That will stay at 10 years' imprisonment and courts will retain their discretion to impose sentences up to that maximum.
	The minimum sentence will apply to offences under Section 5 of the Firearms Act 1968. These include unlawful possession of handguns and automatic weapons, which are commonly used by criminals.
	The minimum sentence will apply only to persons aged 16 or over at the time the offence was committed. The minimum sentence for persons aged 18 or over (21 or over in Scotland) will be five years' imprisonment. For offenders aged 16 and 17 (between 16 and 20 in Scotland) it will be three years' detention.
	We want the minimum sentence to have the widest possible application. A court will be required to impose the minimum sentence in all cases unless there are exceptional circumstances relating to either the offence or the offender which justify not doing so. This exception is aimed at minor regulatory offences, such as where the holder of a firearms certificate inadvertently forgets to renew his authorities or where a war trophy is discovered in a deceased person's effects. The minimum sentence would be disproportionate in such cases. This measure is aimed at criminals who present a risk to public safety.
	Public safety must be paramount. The situation that has led to the recent spate of shootings around the country must be met by effective action. Members of the Committee will know that the mean for these possession offences is not as high as the noble Lord, Lord Thomas of Gresford, believes. It is by no means usual to find that an 18-month sentence for these offences is being imposed. We believe that this is an area which we need to address and this is an opportunity to do so. That is why Clause 271 is part of the Bill.

Lord Thomas of Gresford: I hear what the noble Baroness says. It seems to me that if an 18-month sentence is currently imposed, that is probably about right for the circumstances of the case, whatever it may be. Where criminals use guns, I do not believe that sentences under five years would normally be imposed. Indeed, the apparent draconian nature of the provision is weakened by the possibility of exceptional circumstances reducing the sentence. Not a great deal has therefore been gained. What is lost is the principle that minimum sentences should not be part of our sentencing policy in this country.
	I have made my point and I do not propose to press the matter further.

Clause 271 agreed to.
	Clauses 272 to 276 agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 221E to 221H:
	After Clause 276, insert the following new clause—
	"DURATION OF DIRECTIONS UNDER MENTAL HEALTH ACT 1983 IN RELATION TO OFFENDERS
	(1) Section 50 of the Mental Health Act 1983 (c. 20) (further provisions as to prisoners under sentence) is amended as follows.
	(2) In subsection (1), for "the expiration of that person's sentence" there is substituted "his release date".
	(3) For subsections (2) and (3) there is substituted—
	"(2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date.
	(3) In this section, references to a person's release date are to the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if the transfer direction had not been given; and in determining that day there shall be disregarded—
	(a) any powers that would be exercisable by the Parole Board if he were detained in such a prison or other institution, and
	(b) any practice of the Secretary of State in relation to the early release under discretionary powers of persons detained in such a prison or other institution."" After Clause 276, insert the following new clause—
	"ACCESS TO PAROLE BOARD FOR CERTAIN PATIENTS SERVING PRISON SENTENCES
	In section 74 of the Mental Health Act 1983 (c. 20) (restricted patients subject to restriction directions) after subsection (5) there is inserted—
	"(5A) Where the tribunal have made a recommendation under subsection (1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction—
	(a) the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and
	(b) if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released."" After Clause 276, insert the following new clause—
	"DURATION OF DIRECTIONS UNDER MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986 IN RELATION TO OFFENDERS
	(1) Article 56 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (further provisions as to prisoners under sentence) is amended as follows.
	(2) In paragraph (1), for "the expiration of that person's sentence" there is substituted "his release date".
	(3) For paragraphs (2) and (3) there is substituted—
	"(2) A restriction direction in the case of a person serving a sentence of imprisonment shall cease to have effect, if it has not previously done so, on his release date.
	(3) In this Article, references to a person's release date are to the day (if any) on which he would be entitled to be released (whether unconditionally or on licence) from any prison or juvenile justice centre in which he might have been detained if the transfer direction had not been given; and in determining that day any powers that would be exercisable by the Sentence Review Commissioners or the Life Sentence Review Commissioners if he were detained in such a prison or juvenile justice centre shall be disregarded."" After Clause 276, insert the following new clause—
	"ACCESS TO SENTENCE REVIEW COMMISSIONERS AND LIFE SENTENCE REVIEW COMMISSIONERS FOR CERTAIN NORTHERN IRELAND PATIENTS
	In Article 79 of the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) (restricted patients subject to restriction directions) after paragraph (5) there is inserted—
	"(5A) Where the tribunal have made a recommendation under paragraph (1)(b) in the case of a patient who is subject to a restriction direction—
	(a) the fact that the restriction direction remains in force does not prevent—
	(i) the making of any application or reference to the Life Sentence Review Commissioners by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to those Commissioners, or
	(ii) the making of any application by him to the Sentence Review Commissioners, and
	(b) if—
	(i) the Life Sentence Review Commissioners give a direction by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or juvenile justice centre in which he might have been detained if the transfer direction had not been given, or
	(ii) the Sentence Review Commissioners grant a declaration by virtue of which he would become so entitled,
	the restriction direction shall cease to have effect at the time at which he would become so entitled.""
	On Question, amendments agreed to.
	Clauses 277 and 278 agreed to.
	Schedule 25 agreed to.
	Clause 279 [Fine defaulters: driving disqualification]:

Baroness Scotland of Asthal: moved Amendment No. 222:
	Page 159, line 22, leave out from "produce" to end of line 23 and insert—
	"(a) any such licence held by him together with its counterpart; or
	(b) in the case where he holds a Community licence (within the meaning of Part 3 of the Road Traffic Act 1988 (c. 52)), his Community licence and its counterpart (if any)."

Baroness Scotland of Asthal: Clause 279 re-enacts with appropriate modifications the fine default provisions of the Crime (Sentences) Act. Where, under this clause, a court disqualifies a person from holding or obtaining a driving licence, it must require him to produce any British driving licence held by him. Amendments Nos. 222 and 223 ensure that we cover Community driving licences as well as British ones. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 223:
	Page 159, leave out lines 27 and 28 and insert—
	""counterpart"—
	(a) in relation to a driving licence, has the meaning given in relation to such a licence by section 108(1) of that Act; and
	(b) in relation to a Community licence, has the meaning given by section 99B of that Act."
	On Question, amendment agreed to.
	Clause 279, as amended, agreed to.
	Clause 280 agreed to.
	Clause 281 [Sentencing: repeals]:

Baroness Scotland of Asthal: moved Amendment No. 223A:
	Page 160, line 7, leave out "to 82" and insert "and 81".

Baroness Scotland of Asthal: Amendments Nos. 223A, 244A and 247D are all technical amendments. I beg to move.

On Question, amendment agreed to.
	Clause 281, as amended, agreed to.
	Clause 282 agreed to.
	Schedule 26 [Amendments relating to sentencing]:

Baroness Scotland of Asthal: moved Amendments Nos. 224 to 225:
	Page 302, line 29, leave out paragraph 4.
	Page 305, leave out lines 23 to 36.
	Page 306, line 6, leave out from "from" to end of line 8 and insert ""to be dealt with" onwards there is substituted "or the Crown Court to be dealt with under—
	(a) Part 2 of Schedule 3 to the Powers of Criminal Courts (Sentencing) Act 2000 (breach of certain youth community orders), or
	(b) Part 2 of Schedule 7 to the Criminal Justice Act 2003 (breach of requirement of community order).""
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 225A:
	Page 308, line 42, at end insert—
	:TITLE3:"Repatriation of Prisoners Act 1984 (c. 47)
	39A The Repatriation of Prisoners Act 1984 is amended as follows.
	39B In section 2 (transfer out of the United Kingdom), in subsection (4)(b), for sub-paragraph (i) there is substituted—
	"(i) released on licence under section 28(5) of the Crime (Sentences) Act 1997 or under section 235 or 236 of the Criminal Justice Act 2003; or".
	39C In section 3 (transfer into the United Kingdom), subsection (9) is omitted.
	39D (1) The Schedule (operation of certain enactments in relation to the prisoner) is amended as follows in relation to prisoners repatriated to England and Wales.
	(2) In paragraph 2, for sub-paragraphs (1A) and (2) there is substituted—
	"(2) If the warrant specifies a period to be taken into account for the purposes of this paragraph, the amount of time the prisoner has served shall, so far only as the question whether he has served a particular part of a life sentence is concerned, be deemed to be increased by that period.
	(3) Where the prisoner's sentence is for a term of less than twelve months, Chapter 6 of Part 12 of the Criminal Justice Act 2003 shall apply as if the sentence were for a term of twelve months or more.
	(4) In this paragraph— "the enactments relating to release on licence" means section 28(5) and (7) of the Crime (Sentences) Act 1997 and Chapter 6 of Part 12 of the Criminal Justice Act 2003; "sentence", means the provision included in the warrant which is equivalent to sentence.".
	(3) Paragraph 3 is omitted."

Baroness Scotland of Asthal: All the amendments in this group are technical. I know that some noble Lords may want to hear a word about Amendment No. 230. That amendment clarifies the reference to community orders in Section 1 of the Criminal Justice and Court Services Act 2000. It also places the new suspended sentence order, under which offenders undertake requirements in the community, under the provision describing the role of the national probation service.
	I believe that I wrote about these amendments to noble Lords who participated in the Committee stage. If it is not in the Library, a copy of that letter will be placed there for noble Lords' further consideration if they would find that of use. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 226 to 230:
	Page 309, line 8, leave out paragraph 42 and insert—
	"42 In section 36 (reviews of sentencing), in subsection (2), for the words from "erred in law" onwards there is substituted—
	"(a) erred in law as to his powers of sentencing; or
	(b) failed to impose a sentence required by—
	(i) section 51A(2) of the Firearms Act 1968;
	(ii) section 110(2) or 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000; or
	(iii) any of sections 216 to 219 of the Criminal Justice Act 2003."" Page 311, line 17, at end insert—

"Prisoners and Criminal Proceedings (Scotland) Act 1993 (c. 9)

58A In section 10 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (life prisoners transferred to Scotland)—
	(a) in subsection (1)—
	(i) in paragraph (a), sub-paragraph (i), and the succeeding "or", are omitted, and
	(ii) after paragraph (a) (ii) there is inserted "or
	(iii) subsections (5) to (8) of section 28 (early release of life prisoners to whom that section applies) of the Crime (Sentences) Act 1997 (c. 43) (in this section, the "1997 Act") apply by virtue of an order made under section 28(2)(b) of that Act (while that provision was in force) or an order made under section 254(2) of, or paragraph 3(1)(a) of Schedule 18 to, the Criminal Justice Act 2003;", and.
	(iii) for "28(2)(b) or 82A(2) or paragraph" there is substituted "82A(2), 28(2)(b) or 254(2) or paragraph 3(1)(a) or".
	(b) in subsection (5)(b)—
	(i) for "the Crime (Sentences) Act 1997" there is substituted "the 1997 Act", and
	(ii) after the words "Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)" there is inserted "section 254(2) of, or paragraph 3(1)(a) of Schedule 18 to, the Criminal Justice Act 2003,"." Page 311, line 21, leave out "subsection 3(c)" and insert "in paragraph (c) of the definition of "conviction" in subsection (5)"
	Page 312, line 37, leave out from "for" to end of line 38 and insert ""a community punishment order" there is substituted "an unpaid work requirement""
	Page 313, line 43, leave out from beginning to "subsection" and insert—
	"(1) Section 31(duration and conditions of licences) is amended as follows.
	(2) In subsection (3), for the words from "except" onwards there is substituted "except in accordance with recommendations of the Parole Board".
	(3) Subsection (4) is omitted.
	(4) In" Page 313, line 45, at end insert—
	"68A In section 32 (recall of life prisoners while on licence) for subsection (5) there is substituted—
	"(5) Where on a reference under subsection (4) above the Parole Board directs the immediate release on licence under this section of the life prisoner, the Secretary of State shall give effect to the direction."" Page 313, line 45, at end insert—
	"68B (1) Schedule 1 (transfers of prisoners within the British Islands) is amended as follows.
	(2) In paragraph 6, after sub-paragraph (3) there is inserted—
	"(4) In this Part of this Schedule—
	"the 2003 Act" means the Criminal Justice Act 2003;
	"custody plus order" has the meaning given by section 174(4) of that Act;
	"intermittent custody order" has the meaning given by section 176(2) of that Act."
	(3) In paragraph 8 (restricted transfers from England and Wales to Scotland)—
	(a) for sub-paragraph (2)(a) there is substituted—
	"(a) sections 232, 235, 237 to 241 and 243 to 249 of the 2003 Act (release on licence of fixed-term prisoners) or, as the case may require, sections 102 to 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 28 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Scotland;
	(aa) sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Scotland;
	(ab) where a custody plus order or intermittent custody order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall also apply to him (subject to Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act); and",.
	(b) for sub-paragraph (4)(a) there is substituted—
	"(a) sections 232, 239 to 241 and 243 to 249 of the 2003 Act (duration and conditions of licences for fixed-term prisoners) or, as the case may require, sections 103 and 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 31 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Scotland;
	(aa) sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Scotland;
	(ab) where a custody plus order or intermittent custody order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall also apply to him (subject to Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act); and", and.
	(c) for sub-paragraphs (5) to (7) there is substituted—
	"(5) Section 31(2A) of this Act (conditions as to supervision after release), as applied by sub-paragraph (2) or (4) above, shall have effect as if for paragraphs (a) to (c) there were substituted the words "a relevant officer of such local authority as may be specified in the licence".
	(4) In paragraph 9 (restricted transfers from England and Wales to Northern Ireland)—
	(a) for sub-paragraph (2)(a) there is substituted—
	"(a) sections 232, 235, 237 to 241 and 243 to 249 of the 2003 Act (release on licence of fixed-term prisoners) or, as the case may require, sections 102 to 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 28 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Northern Ireland;
	(aa) sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Northern Ireland;
	(ab) where a custody plus order or intermittent custody order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall apply to him (subject to Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act); and",.
	(b) for sub-paragraph (4)(a) there is substituted—
	"(a) sections 232, 239 to 241 and 243 to 249 of the 2003 Act (duration and conditions of licences for fixed-term prisoners) or, as the case may require, sections 103 and 104 of the Powers of Criminal Courts (Sentencing) Act 2000 (detention and training orders) or sections 31 to 34 of this Act (life sentences) shall apply to him in place of the corresponding provisions of the law of Northern Ireland;
	(aa) sections 62 and 64 of the Criminal Justice and Court Services Act 2000 (which relate to licence conditions) shall apply to him in place of the corresponding provisions of the law of Northern Ireland;
	(ab) where a custody plus order or intermittent custody order has effect in relation to him, the provisions of Chapters 3 and 4 of Part 12 of the 2003 Act relating to such orders shall apply to him (subject to Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) to that Act); and",.
	(c) for sub-paragraphs (5) to (7) there is substituted—
	"(5) Section 31(2A) of this Act (conditions as to supervision after release), as applied by sub-paragraph (2) or (4) above, shall have effect as if for paragraphs (a) to (c) there were substituted the words "a probation appointed for or assigned to the petty sessions district within which the prisoner for the time being resides".
	(5) In paragraph 15 (unrestricted transfers: general provisions), sub-paragraph (5) is omitted." Page 313, line 45, at end insert—
	"68C In Schedule 2 (repatriation of prisoners to the British Islands) paragraphs 2 and 3 are omitted." Page 317, line 22, at beginning insert "the court is of the opinion"
	Page 317, line 25, at end insert—
	"93A In section 106 (interaction of detention and training orders with sentences of detention in a young offender institution), subsections (2) and (3) are omitted." Page 317, line 25, at end insert—
	"93B After section 106 there is inserted—
	"106A INTERACTION WITH SENTENCES OF DETENTION
	(1) In this section—
	"the 2003 Act" means the Criminal Justice Act 2003;
	"sentence of detention" means—
	(a) a sentence of detention under section 91 above, or
	(b) a sentence of detention under section 219 of the 2003 Act (extended sentence for certain violent or sexual offences: persons under 18).
	(2) Where a court passes a sentence of detention in the case of an offender who is subject to a detention and training order, the sentence shall take effect as follows—
	(a) if the offender has at any time been released by virtue of subsection (2), (3), (4) or (5) of section 102 above, at the beginning of the day on which the sentence is passed, and
	(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released by virtue of subsection (2), (3), (4) or (5) of section 102.
	(3) Where a court makes a detention and training order in the case of an offender who is subject to a sentence of detention, the order shall take effect as follows—
	(a) if the offender has at any time been released under Chapter 6 of Part 12 of the 2003 Act (release on licence of fixed-term prisoners), at the beginning of the day on which the order is made, and
	(b) if not, either as mentioned in paragraph (a) above or, if the court so orders, at the time when the offender would otherwise be released under that Chapter.
	(4) Where an order under section 102(5) above is made in the case of a person in respect of whom a sentence of detention is to take effect as mentioned in subsection (2)(b) above, the order is to be expressed as an order that the period of detention attributable to the detention and training order is to end at the time determined under section 102(5)(a) or (b) above.
	(5) In determining for the purposes of subsection (3)(b) the time when an offender would otherwise be released under Chapter 6 of Part 12 of the 2003 Act, section 236 of that Act (power of Secretary of State to release prisoners on licence before he is required to do so) is to be disregarded.
	(6) Where by virtue of subsection (3)(b) above a detention and training order made in the case of a person who is subject to a sentence of detention under section 219 of the 2003 Act is to take effect at the time when he would otherwise be released under Chapter 6 of Part 12 of that Act, any direction by the Parole Board under subsection (2)(b) of section 237 of that Act in respect of him is to be expressed as a direction that the Board would, but for the detention and training order, have directed his release under that section.
	(7) Subject to subsection (9) below, where at any time an offender is subject concurrently—
	(a) to a detention and training order, and
	(b) to a sentence of detention,
	he shall be treated for the purposes of the provisions specified in subsection (8) below as if he were subject only to the sentence of detention.
	(8) Those provisions are—
	(a) sections 102 to 105 above,
	(b) section 92 above and section 226 of the 2003 Act (place of detention, etc.), and
	(c) Chapter 6 of Part 12 of the 2003 Act.
	(9) Nothing in subsection (7) above shall require the offender to be released in respect of either the order or the sentence unless and until he is required to be released in respect of each of them."" Page 328, line 39, leave out from beginning to "(loss" and insert—
	"109A The Child Support, Pensions and Social Security Act 2000 is amended as follows.
	110 (1) Section 62" Page 329, line 1, at end insert—
	"110A In section 64 (information provision), in subsection (6)(a), after "community orders" there is inserted "(as defined by section 170 of the Criminal Justice Act 2003)"." Page 329, line 3, at end insert—
	"111A In section 1 (purposes of Chapter 1 of Part 1 of the Act), in subsection (2)—
	(a) in paragraph (a), after "community orders" there is inserted "(as defined by section 170 of the Criminal Justice Act 2003)", and
	(b) after paragraph (c) there is inserted—
	"(d) giving effect to suspended sentence orders (as defined by section 181 of the Criminal Justice Act 2003)."
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 230ZZA:
	Page 329, line 3, at end insert—
	"111B (1) Section 62 (release on licence etc: conditions as to monitoring) is amended as follows.
	(2) For subsection (3) there is substituted—
	"(3) In relation to a prisoner released under section 236 of the Criminal Justice Act 2003 (power to release prisoners on licence before required to do so), the monitoring referred to in subsection (2)(a) does not include the monitoring of his compliance with conditions imposed under section 242 of that Act (curfew condition)."
	(3) In subsection (5) after paragraph (e) there is inserted ", and
	(f) a sentence of detention under section 217 or 219 of the Criminal Justice Act 2003"."
	On Question, amendment agreed to.
	Schedule 26, as amended, agreed to.
	Clause 283 [Interpretation of Part 12]:

Baroness Scotland of Asthal: moved Amendment No. 230ZZB
	Page 160, line 41, after "more)" insert "except in Chapter 7"
	On Question, amendment agreed to.
	Clause 283, as amended, agreed to.

Baroness Anelay of St Johns: moved Amendment No. 230ZA:
	After Clause 283, insert the following new clause—
	"DUTY OF PROBATION OFFICERS TO CONSULT WITH MAGISTRATES
	It shall be the duty of the chief officer of each probation area—
	(a) to establish consultation arrangements with local magistrates' courts committees and local communities,
	(b) to assist the probation service in the performance of its duties of reducing offending, and
	(c) to supervise offenders in the community."

Baroness Anelay of St Johns: I tabled this amendment after receiving representation from the Magistrates' Association. The clause would re-establish local consultation between the probation service and magistrates. The statutory probation liaison committees were killed off following the introduction of the Criminal Justice and Court Services Act 2000. The amendment also introduces an obligation for local probation areas to consult local committees, which are generally considered not too well informed about the work of the probation service.
	When this new clause was tabled in another place by one of the Ministers' honourable friends, Mr Graham Allen, we considered carefully whether the duty needed to be put on a statutory footing. The Minister's answer in another place persuaded us that Mr Allen was right to table this new clause and seek a statutory basis for the re-establishment of this local consultation. The Minister at that time referred to guidance which was issued last year. However, the Magistrates' Association has pointed out to us that their experience is that this new clause is still needed despite the well meaning nature of the guidance. I beg to move.

Lord Bassam of Brighton: We well understand the amendment tabled by the noble Baroness and the concerns that have prompted it with the demise of the statutory probation liaison committees following the introduction of the Criminal Justice and Court Services Act 2000.
	However, I assure the noble Baroness that joint working continues to be a priority for the National Probation Service. These arrangements were put in place and cemented in guidance issued last year by the probation service, the Lord Chancellor's Department, the Magistrates' Association, the Justices' Clerks' Society and the Association of Justices' Chief Executives and entitled, Working Together—The National Probation Service and the Courts. That guidance promotes communication, understanding and mutual confidence between the courts and the probation service and emphasises that joint working imposes a number of obligations on sentences and probation staff to achieve these ends. It suggests that something like the old probation liaison committees could provide a forum to review working jointly and to plan future events to lead and improve such work.
	The purpose of joint working is to achieve better outcomes for all areas in the criminal justice system. This forms part of a wider, long-term communication strategy for sentencers developed by the National Probation Directorate, which aims to engage sentencers both at the local and national level with the work of the probation service. Elements of this include meetings and direct contact with sentencers, the production of information leaflets and videos on new initiatives and seminars and conferences.
	Surveys are also being conducted on sentencers as well as the general public to research perceptions of the probation service and its work with offenders, and the issues raised by those will inform future priorities.
	We have also set up the new local criminal justice boards, which were introduced in April this year. They bring together the CPS, courts, prison, probation and police services, magistrates and youth offending teams and encourage joint working toward a set of common aims and targets.
	The probation service has also developed closer links with the local community. The modernisation of the service has made it more responsive to local needs. The new local probation boards have a more diverse membership and are more closely representative of those local needs. The boards are accountable for delivering a service that reflects local concerns.
	The introduction of crime and disorder reduction partnerships has placed a joint duty on local authorities and the police to work in co-operation with other agencies, including the probation service, to formulate and implement a crime and disorder strategy for their area. The partnerships are required to undertake an audit of crime and disorder in their area and to liaise widely with the community on the results to verify that they have identified people's real problems. They then develop and implement a strategy to tackle priority problems.
	The need for strong and effective liaison between probation, sentencers and the local community is well understood and taken, but the arrangements that we have identified effectively meet that need. For those reasons, although the new clause is well meaning, it is unnecessary, because we have the appropriate networks and joint working arrangements in place, as I described. I hope that with that, the noble Baroness will feel able to withdraw her amendment.

Baroness Anelay of St Johns: The Minister has described why the Government feel that my amendment is unnecessary. He referred to the guidance issued last year. The point made by the Magistrates' Association is that that guidance is insufficient and that there is still a need for local consultation on a statutory basis. Without that, the process will not be effective. I feel that I have a duty to the Magistrates' Association and its representations and I beg to test the opinion of the Committee.

On Question, Whether the said amendment (No. 230ZA) shall be agreed to?
	Their Lordships divided: Contents, 10; Not-Contents, 12.

Lord Brabazon of Tara: As it appears that fewer than 30 noble Lords have voted, in accordance with Standing Order 58 I declare the Question not decided and, pursuant to Standing Order, the House will now resume.

House resumed.
	House adjourned at twenty-seven minutes past one o'clock.